Feinstein has vowed to return to Washington, but what happens if she doesn’t?

WASHINGTON — The race to replace retiring Sen. Dianne Feinstein is well underway, but as California’s senior senator has missed nearly 60 votes over the past two months, some liberal Democrats are calling for her to resign.

Feinstein, who is recovering from shingles, said she plans to serve out her term and has received the support of party leadership. Senate Majority Leader Charles E. Schumer said this week that he hoped she would return soon. Feinstein released a statement saying she plans to return to Washington when her doctors say it is safe for her to travel.

With a narrowly divided Senate, questions have arisen about the options for Democrats if Feinstein does not return to the U.S. Capitol but does not resign.

The 89-year-old, the oldest member of the Senate, has been facing questions in recent years about her cognitive abilities and fitness for the post. Her supporters argue that these questions are ageist and sexist, pointing to male senators who served into their twilight without such criticism.

But the dynamic changed once Feinstein announced March 2 that she was hospitalized with shingles, a viral infection related to chicken pox that is painful but not life-threatening. At the time, she said she hoped to return to the Senate by the end of March.

Her continued absence is critical for two reasons: Democrats have narrow control of the Senate, 51-49, and Feinstein sits on the powerful Judiciary Committee. With her absence, the panel is divided 10-10 between Democrats and Republicans, stymieing the Biden administration’s judicial appointments.

The committee last voted on a nominee in mid-February, and its chairman told CNN that he can’t put Biden appointees forward because of the tied membership.

This conundrum prompted Feinstein to ask Schumer to temporarily replace her on the committee with another Democrat until she returns to the Capitol — a move that was blocked by Senate Republicans.

There’s nothing in law specifically for this situation.

In the past, when senators have been absent for extended periods due to illness, the Senate has proceeded as normal with a vacant seat. Prior examples include the late Sen. Karl Mundt of South Dakota, who suffered a stroke in 1969 and was absent from the Senate for three years without resigning, and President Biden, who during his Senate tenure was absent for seven months in the 1980s after he underwent two surgeries for brain aneurysms.

The Senate can, in theory, take action to remove a sitting senator for certain reasons. But the upper chamber has never done so because a senator was sick or incapacitated.

“Unless a senator chooses to resign, the only way to remove them from office is by a two-thirds expulsion vote,” said Molly Reynolds, senior fellow in Governance Studies at the Brookings Institution, a bipartisan Washington think tank, in response to emailed questions.

It has happened in rare occasions, and not for more than a century and a half.

In its 234-year history, the Senate has expelled 15 members: one for treason and 14 because of their support for the Confederacy during the Civil War.

Since the last expulsion, in 1862, there have been 13 failed attempts to remove senators on myriad grounds, from corruption to election fraud to being a Mormon (Utah’s Reed Smoot in 1907). These senators either survived the expulsion vote or resigned.

Under the U.S. Constitution, senators cannot be recalled from office by voters in their state, according to the California secretary of State.

Each state has its own rules on how to replace a senator before the regular election cycle.

Under California law, a senate vacancy may be filled via an appointment by the governor that does not require confirmation by the California Legislature or the U.S. Senate. The governor also may call for a special election to fill the vacancy.

If there is a vacancy, California voters at the next general election would select a senator to serve the remainder of the six-year term of the person who vacated the office.

In January 2021, Gov. Gavin Newsom appointed California Secretary of State Alex Padilla to fill the Senate vacancy created when Kamala Harris was sworn in as vice president. In November 2022, the ballot had two senate elections: one about who should serve the remainder of Harris’ term in the Senate, which would have ended in January 2023, and one about who should serve the subsequent six-year term. Padilla easily won both.

Given the thin partisan divide in the Senate, it’s likely that Newsom would move quickly to appoint a fellow Democrat to fill any vacancy to ensure his party remains in control of the upper chamber.

No.

There is no guarantee the replacement will fill their predecessor’s committee seats.

“Once there is a new senator sworn into the vacant seat, he or she only gets committee assignments after the Senate adopts a simple resolution,” Reynolds said.

Opponents can in theory hold up that process with a filibuster — continuous, often unnecessary debate on the floor to cause a prolonged delay to a vote. It would take 60 votes to end a filibuster.

For Feinstein, who serves on the Judiciary Committee, that question is particularly important.

Even if she left office, Republicans could prevent her successor — or any Democratic replacement — from filling her seat on the Judiciary Committee, under current Senate rules. That said, taking such a step would be unprecedented and highly provocative.

Democrats could pass a rule change to ensure that Republicans cannot block new senators from committees by requiring a simple majority instead of 60 votes, said Jim Manley, who spent 21 years in the Senate working for Democrats including the late Harry Reid, the former Senate Majority Leader from Nevada.

But Manley noted that Sen. Lindsey Graham (R-S.C.), the leading GOP senator on the Judiciary Committee, said in a recent CNN interview that Republicans would follow precedent if Feinstein resigns.

In 2021, Newsom pledged to appoint a Black woman to replace Feinstein if she retired early.

This promise came after his decision to appoint Padilla to replace Harris when she was sworn in as vice president. Harris’ departure meant there was not a single Black woman in the Senate.

This pledge has created a dilemma for the two-term governor.

There are three top candidates vying for Feinstein’s seat: Democratic Reps. Adam B. Schiff of Burbank, Katie Porter of Irvine and Barbara Lee of Oakland. Newsom has declined to weigh in on the race; a senior aide told The Times, “There are three extremely qualified candidates in the race that have displayed the courage it takes to fight for California values in Washington, D.C.”

Lee, who is Black, is beloved by liberal Democrats as the sole member of Congress to vote against giving President George W. Bush authorization to use military force after the Sept. 11, 2001, terrorist attacks. When Newsom pledged to name a Black woman to Feinstein’s seat if she resigned before her term was over, Lee was one of the likely choices. However, with an active Senate race underway, such an appointment would be viewed as the governor putting a thumb on the scale in the 2024 election and could irk the others in the race who are popular with Democratic voters across the nation.