On Thursday May 11, Dianne Feinstein received a standing ovation when she returned to the Senate Judiciary Committee after an absence of nearly three months, during which she was recovering from a bout of shingles. Feinstein’s return gave Democrats a minimal 11-to-10 majority over Republicans on the committee, which was enough to break the gridlock caused by Feinstein’s nonattendance. At age 89, Feinstein is the oldest serving senator, and there are long-standing concerns—dating back as far as her 2018 decision to run for reelection—about her physical and mental fitness for her post.
For Feinstein’s admirers, the California senator’s return is a vindication of her decision to ignore calls for her to retire. This upbeat view of Feinstein’s senatorial homecoming was shared by many of her colleagues, including Senator Cory Booker, who told reporters, “She’s returned to the Senate. I’m excited about that. The Senate was getting a lot of work done.” The counterargument that Feinstein would best serve California voters by retiring has been made by only a few Democrats—notably, Representatives Ro Khanna and Alexandria Ocasio-Cortez.
Despite the standing ovation and the votes she provided to confirm three judges, it remains unclear whether Feinstein will ever be able to return to the normal work of a senator. She continues to miss votes and has been kept under tight protection by her staff, who acknowledge that she needs a “lighter schedule” for now.
The New York Times, in a vivid and detailed report, painted a grim picture of Feinstein’s health condition, noting that her
frail appearance was a result of several complications after she was hospitalized for shingles in February, some of which she has not publicly disclosed. The shingles spread to her face and neck, causing vision and balance impairments and facial paralysis known as Ramsay Hunt syndrome. The virus also brought on a previously unreported case of encephalitis, a rare but potentially debilitating complication of shingles.
The newspaper added that
post-shingles encephalitis can leave patients with lasting memory or language problems, sleep disorders, bouts of confusion, mood disorders, headaches and difficulties walking. Older patients tend to have the most trouble recovering. And even before this latest illness, Ms. Feinstein had already suffered substantial memory issues that had raised questions about her mental capacity.
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The photographs of a visibly stricken Feinstein being pushed around the Senate in a wheelchair were disheartening, as were exchanges with reporters where Feinstein seemed unaware that she had been absent from the Senate for three months. When a reporter asked Feinstein how her colleagues reacted to her return, the senator responded, “No, I haven’t been gone. You should follow the—I haven’t been gone. I’ve been working.” A follow-up question about whether Feinstein meant she was working from home received a curt retort: “No, I’ve been here. I’ve been voting. Please. You either know or don’t know.”
The simple truth is that Democrats now face an impossible dilemma because of Feinstein’s decision to stay at her job until her age and health brought her to a crisis point. It’s unclear whether party leaders can pressure the famously independent Feinstein to resign—or even what a volitional decision means in her current state. Because of her advanced age, her social circle of trusted advisers is much diminished. Her husband died last year. Another close confidant, former representative Ellen Tauscher, died in 2019. According to The New York Times, even some members of Feinstein’s own family have been denied access to the senator during her current illness. In effect, Feinstein is in a murky, twilight world, cocooned by her staff and by the isolation of being a powerful senator.
Even if Feinstein were to resign, that would not solve all the problems caused by her current condition. California Governor Gavin Newsom, a Democrat, would appoint a Democratic replacement. He’s promised to give the post to a Black woman. But the Republicans could play procedural hardball and deny that replacement (or any other Democrat) Feinstein’s position on the Senate Judiciary Committee. That would mean that Joe Biden’s ability to shape the judiciary with liberal nominations would be curtailed.
Writing in Time, Phillip Elliot raises the possibility that a Feinstein resignation now could prevent Biden from filling another Supreme Court seat if one opens up. This leads Eliott to make what he acknowledges is “a cynical, craven, dark” argument for Feinstein to hold her post:
Should an opening on the Supreme Court come to pass, a Feinstein-free Senate may not be able to do anything until 2025. That could push that decision beyond Biden’s reach and potentially into the hands of a Republican President should Biden lose his reelection bid. (Remember: Senate Republican Leader Mitch McConnell held up Barack Obama’s pick for the high court, Merrick Garland, for 293 days.) The 2024 Senate map is about as hostile for Democratic incumbents as we’ve seen in some time, meaning their continued control of the chamber is far from assured, too.
By this line of reasoning, Democrats face a true Hobson’s choice: They could keep the visibly impaired Feinstein in the Senate (serving as a kind of human sacrifice) or they could risk losing another Supreme Court seat. Speaking to The New York Times, Feinstein’s California colleague Barbara Boxer blamed the rival party. “Republicans are responsible for this nightmare scenario that’s unfolding,” Boxer said. “I am sick at heart at that. I blame them for being mean to her and spinning it to blame the Democrats.”
Boxer is only partially right. Republicans are, of course, behaving with their usual ruthless pursuit of judicial power—even at the cost of long-standing norms. But Democrats should know by now that this is how Republicans act. Democrats squandered many opportunities over the last few years to avoid the current tragic situation.
Feinstein could have retired in 2018—she was 85 years old and there were already concerns about her health. Democrats could have removed Feinstein from the judiciary committee anytime from January 2021 to January 2023 and placed a healthier colleague at her post. If they had, the current crisis would not have happened.
The Feinstein dilemma is part of the larger gerontocracy problem within the Democratic party, whose national leadership gives new meaning to the term “elder statesmen.” Last year, my colleague Katha Pollitt ran down the sobering statistics: “Dianne Feinstein is 89. Steny Hoyer is 83, Nancy Pelosi and Pat Leahy are 82, and Bernie Sanders is 80. Ben Cardin is 78, Richard Blumenthal is 76, Jeanne Shaheen is 75, Elizabeth Warren and Ron Wyden are 73; Debbie Stabenow is 72 and Chuck Schumer is 71.” Joe Biden, of course, is 80.
Nancy Pelosi stepped down from leadership last year, but her fingerprints are all over the Feinstein story. In February of this year, Pelosi said, “If Senator Feinstein decides to seek reelection, she has my whole-hearted support.” Pelosi added that if Feinstein didn’t run, she would support Representative Adam Schiff to be the Democratic nominee. In April, Pelosi accused those calling for Feinstein’s resignation of sexism.
According to Politico and other sources, Nancy Pelosi’s eldest daughter, Nancy Corinne Prowda, is taking care of Feinstein and practically lives with the senator. Politico quoted an unnamed “Pelosi family confidant” as arguing that Pelosi wants to prevent a scenario whereby Feinstein resigns and is replaced by Representative Barbara Lee—who would then have an advantage over Adam Schiff in the race to be the Democratic nominee in California’s 2024 Senate race. “If DiFi resigns right now,” the confidant asserted, “there is an enormous probability that Barbara Lee gets appointed—thus, it makes it harder for Schiff.”
Feinstein’s office denies this claim. The New York Times reports, “Prowda is not involved in politics at all and is as close to Ms. Feinstein as family.”
Pelosi’s claim that calling for Feinstein’s resignation is sexism is contradicted by not just the known facts of Feinstein’s health but also Newsom’s promise to give the position to a Black woman. For that matter, Pelosi’s preference for Adam Schiff over Barbara Lee or Katie Porter (among other possible nominees) shows that Pelosi’s use of identity politics was purely a cynical and instrumental ploy.
Whatever Feinstein’s personal fate, Democrats face nothing but bad options. These options were created by a cohort of elderly Democrats who overvalued their own indispensability to American democracy, and were singularly unwilling to cultivate younger talent. The whole sorry saga raises a distressing question: Are the Democrats a real political party committed to the pursuit of power on behalf of a progressive agenda? Or are they merely an employment agency for the superannuated?