Sen. Jon Tester (D-MT) set off alarm bells around the Capitol on Wednesday when he told Politico that there’s a strong possibility Senate Republicans would refuse to fill the vacancy on the Judiciary Committee even if Sen. Dianne Feinstein (D-CA) were to resign. A senior aide to a Democratic senator said Tester’s comments generated intense speculation around the Capitol.
“It’s ricocheting around,” the aide told TPM when asked about Tester’s remarks. “It’s like a heat-seeking missile.”
However, there’s one reason the dramatic scenario Tester warned of is highly unlikely: It would be a massive break with precedent. And apart from fraying nerves and generating intense chatter in Senate offices, Tester’s remark may also have shown the limit to the Feinstein fight by drawing out some Republican senators and securing their commitment not to break from established procedures.
Feinstein, who sits on the Judiciary Committee, has been absent from the Senate since she was diagnosed with shingles in late February. Her office revealed she was hospitalized the following month. The 89-year-old has previously faced some questions around her cognitive health and already announced she is not running for reelection in 2024. However, her lengthy absence — and its effect on the Judiciary Committee — has led to calls for her immediate resignation.
During her time away, Feinstein has missed dozens of Senate votes including some in the crucial Judiciary Committee where her presence is required to break a tie and move President Joe Biden’s judicial nominees to the floor. Feinstein tried to temporarily step aside and allow another Democrat to serve in her place, but Senate Republicans blocked the move on Tuesday. At the time, some Republicans made it clear that they have no intention of helping Democrats get more of Biden’s judicial nominees confirmed.
“I don’t think Republicans are going to lift a finger in any way to get more liberal judges appointed,” Sen. Mitt Romney (R-UT) told CNN this week. “So whether she’s resigned or leaves temporarily from the Judiciary Committee, I think we will slow walk any process that makes it easier to appoint more liberal judges.”
Both Romney and Tester’s comments raised the possibility Republicans would prevent a replacement for Feinstein from sitting on the committee if she chooses to retire. California Gov. Gavin Newsom, a Democrat, would appoint her replacement. Tester’s office declined to comment for this article.
However, top Senate Judiciary Committee Republicans have since confirmed they would not go that far. The reason for their reluctance is that blocking a replacement for a retiring senator would be a dramatic break from precedent.
A spokesperson for Sen. Lindsey Graham (R-SC) — the top Republican on the Senate Judiciary Committee — pointed to a statement he made to NBC News where he said normal protocol should be followed if Feinstein steps down.
“I think there’s a process,” Graham said. “When somebody dies, resigns, whatever that process is, we should do whatever we have done in the past.”
A spokesperson for Sen John Cornyn (R-TX) — who also sits on the Judiciary Committee — pointed to a comment he made to HuffPost when asked about the potential for Republicans to block a Feinstein replacement. In his remarks, Cornyn indicated that he took issue with the idea of a temporary member of the committee since that would be unusual.
“It’s the temporary substitution which is the unprecedented ask,” Cornyn said.
“If she were no longer a senator, yes,” he added, indicating he would vote to fill the empty committee seat.
Both Graham and Cornyn were referring to a long-standing procedural precedent where committee memberships are decided by the two parties. Typically, senators are appointed to serve on committees through the adoption of simple resolutions at the beginning of each new Congress. According to the Congressional Research Service, “while technically debatable and amendable, these resolutions have typically been agreed to by unanimous consent, reflecting the long-standing practice of each party determining its own membership to committees.”
In other words, these resolutions that determine the makeup of each committee are normally, as the senior aide told us, “a formality.”
A GOP source in the Senate echoed Graham and Cornyn’s sentiments, telling TPM it’s unlikely Republicans would get behind such a dramatic change to precedent and block filling an empty seat on the committee.
‘“The longstanding practice in the Senate is to defer to the caucuses on committee membership,” the senior Democratic aide said, adding, “the resolution determining committee membership usually goes by unanimous consent because it’s already been determined in the caucuses.”
And if “changes in membership to the Senate occur over the course of a Congress—whether the result of a retirement, special election, death, or other circumstance—additional resolutions appointing individual Senators to committees may be considered and adopted as well,” according to the Congressional Research Service.
So, traditionally, if a committee seat becomes empty because a senator retired or passed away, that seat will be filled by their caucus through a new resolution. But, though unprecedented, senators could technically refuse a resolution and block filling an empty committee seat. However, making that move would raise the possibility a similar blockade could occur every time a senator retired or passed away.
As the senior Democratic aide put it, if naming a temporary replacement would be unprecedented, blocking a permanent one “would be a departure, but like, times a hundred.”
“Who knows if this temporary replacement thing is going to come up again, but one thing you know is there’s going to be a vacancy in the Senate in the middle of the session sometime,” the aide told TPM. “So, to block Feinstein’s replacement now would irrevocably break the process going forward.”
“Technically… I think the Republicans could play serious hardball,” the aide added. “If there’s a vacancy, technically by rule, they could prevent that seat from being filled, but it would be such a departure from the way the Senate normally operates that it seems so far-fetched. It’s hard to imagine it even happening.”
TPM’s Hunter Walker contributed reporting.