Why GOP is unlikely to block Feinstein’s Judiciary replacement

As Feinstein’s health declined earlier this year — she missed a lengthy period of time due to complications from a serious case of shingles — her seat on the all-important Judiciary Committee became the source of intense scrutiny. Her missed votes on the committee caused a 10-10 logjam between Democrats and Republicans and stalled federal judge nominations by President Joe Biden. In April, Senate Republicans rejected efforts by Senate Democrats to allow a temporary replacement on the committee while Feinstein continued recovering.

“Senate Republicans will not take part in sidelining a temporarily absent colleague off a committee just so Democrats can force through their very worst nominees,” Sen. Mitch McConnell, R-Ky., said at the time. That message trickled down to other Senate Republicans, many of whom were careful to note their objection was only to a temporary replacement on the Judiciary Committee.

“You think Mitch McConnell is going to seat another federal judge? Not a chance in hell,” Newsom said over the summer, according to Politico. “You better wish, you better pray, for her health.”

Feinstein’s death Thursday will put that theory to the test. In the coming days, high-profile Democrats may also be in the uncomfortable position of explaining why they insisted that a clearly ailing woman needed to stay in office to keep casting votes.

As Slate summarized on Friday, conservative senators like Chuck Grassley, R-Iowa, had already indicated that they “wouldn’t do that,” referencing the idea of blocking a full-time committee appointment. The ranking member of the Judiciary Committee, Sen. Lindsey Graham, R-S.C., said in April that if Feinstein resigned, “I would be in the camp of following the precedent of the Senate, replacing the person, consistent with what we have done in the past.”

On Friday, SFGATE reached out to all of the Republicans on the Judiciary Committee, along with 10 other influential Republicans in the Senate. Many did not immediately respond to requests for comment, but the ones who did made it clear there’s little chance of a blocking a replacement for Feinstein. 

A spokesperson for Graham referred SFGATE to a social media post from a Politico reporter, which read in part, “Not a huge surprise but Senate GOP signaling there won’t be a fight over filling the vacant committee seats caused by Feinstein’s death.” Graham’s spokesperson added, “The proposed replacement of Feinstein [in April] was outside the typical and customary operations of the Senate.”

A spokesperson for Sen. John Cornyn, R-Texas, who’s also on the Judiciary Committee, sent along the senator’s comments from a reporter scrum earlier in the day: “I don’t think this should be handled any differently than filling any other vacancy,” Cornyn said. “The problem was there wasn’t a true vacancy before.”

A spokesperson for Sen. Josh Hawley, R-Mo., referred SFGATE to a quote Hawley gave to Business Insider: “Democrats have a majority in the Senate. They won the election, so they are entitled to a majority on all the committees,” Hawley said. “I don’t know on what grounds you would say, ‘well, not on Judiciary, though.’”

A spokesperson for Sen. Ron Johnson, R-Wis., who isn’t on the Judiciary Committee, wrote that they “do not foresee an objection to new assignments.” Two other Republicans who aren’t on the Judiciary Committee, Sens. Steve Daines, R-Mont., and Mike Crapo, R-Idaho, said they would defer to their colleagues who do serve on that panel.

If the GOP did an about-face and actually tried to sink Feinstein’s Judiciary Committee replacement, they would need 40 of their 49 members to block the potential appointee. Not only is that a tall task, but it would also create an ominous precedent. There are 14 Republican senators over the age of 70; were any of them to die or resign early, Democrats could adopt the same destructive policy.

The next step is for Newsom to appoint someone to finish Feinstein’s term, until a successor is elected in November 2024.

SFGATE deputy managing editor Kimberly Alters contributed to this report.

Editor’s note: This story was updated on Sept. 29 at 3:35 p.m. to remove incorrect information about 2024 Senate race dates.