Dianne Feinstein Reminded Us That the Senate Doesn’t Have a Plan

Dianne Feinstein’s decision to step back as a member of the Senate Judiciary Committee as she recovers from shingles is a reminder of a larger dilemma facing the Senate: what to do when senators, serving six-year terms, are incapable of fulfilling their role for months or even years. Outside of voluntary resignation, the options the Senate faces are either expulsion—requiring a two-thirds vote—or living with a long-term vacancy or a senator truly incapable of making appropriate decisions.

[Ronald Brownstein: Who will replace Dianne Feinstein?]

This is not a new problem, but it’s one we need to fix, finally. Karl Mundt, a senator from South Dakota, suffered a debilitating stroke late in 1969, and remained unable to work while occupying his Senate seat until his term ended in January 1973. During those three-plus years, he was removed from his committees and his wife ran his staff. But she refused every request to have him resign. South Carolina’s Strom Thurmond, who served for 46 years in the Senate until age 100, was visibly infirm and confused during his final term, and his chief of staff was effectively making decisions for him for years.

Then there are cases of senators suffering serious and debilitating physical injuries or diseases. Tim Johnson of South Dakota and Mark Kirk of Illinois had brain injuries that kept them out of the Senate and facing surgery and rehabilitation for months before both returned to finish out their terms. Ted Kennedy and John McCain had glioblastomas that meant long absences until both died from their brain tumors. And there are more limited absences, such as John Fetterman’s for two months to deal with his clinical depression.

When the American Enterprise Institute and the Brookings Institution created the Continuity of Government Commission after 9/11, my fellow members and I grappled with this issue. We considered what to do when a terrorist attack and an anthrax scare aimed at the Senate had the possibility of putting dozens of senators in intensive care, leaving the chamber potentially for months or years without a quorum and unable to operate. And then, of course, COVID created another danger of mass incapacitation with no clear remedy.

Our original commission recommended a procedure for temporary emergency replacements, individuals who could serve until the incapacitated lawmakers could sign affidavits indicating that they were ready and willing to resume their seats. After the pandemic began, our reconstituted commission recommended a form of remote voting if lawmakers were not capable of physically coming to the Capitol to vote on the floor or in committees. The House implemented a system of proxy voting, which was eliminated this year when the Republicans took the majority. The Senate did nothing.

This is not the first time Democrats have had to think about the 89-year-old Feinstein’s service. In late 2020, after what they viewed as an embarrassing performance during the Supreme Court confirmation hearings for Amy Coney Barrett, Senate Democrats got her to relinquish the top spot on the Judiciary Committee to Dick Durbin. And questions about her memory have been raised repeatedly over the past few years, leading many outside the Senate to call for her resignation.

[Read: Rewriting the rules of presidential succession]

The recent push to get her to relinquish her seat on Judiciary had a special urgency. When Mundt, Johnson, and Kirk had their long absences, the Senate had clear-cut majorities, as well as norms dictating that senators would not exploit absences for political gain. Those norms no longer apply—and the Senate has a 51–49 split. Without Feinstein, the Judiciary Committee has an even number of Democrats and Republicans, and if the Republicans all refuse to vote on a confirmation for a judge, the nomination can be either stymied or forced to go through additional hoops. And that is just what Republicans have done during Feinstein’s absence for multiple judicial nominations.

This kind of problem will no doubt reemerge. It is time for the Senate to do something to minimize the problem, to make sure there is continuity in representation and no possibility of gaps for weeks, months, or years when a senator is unable to vote or take part in proceedings. First, the body should take up a constitutional amendment allowing for emergency interim replacements when senators (and House members as well) cannot serve for lengthy periods of time. Ideally, the incapacitated senators could themselves indicate the need for a replacement, and designate an individual to serve during the absence; if they are unable to do so, the decision should be made upon a vote of two-thirds of the members of the senator’s party caucus. The replacement would serve only until the senator was ready to return to duty.

Second, the Senate should implement a rule that it inexplicably failed to do during the height of the pandemic, and provide for a form of remote voting in committee and on the Senate floor when individual senators cannot be there in person for reasons of health or disasters, whether natural or from terrorist attacks. It can be via proxy voting, as the House did, or through another mechanism, and it should include appropriate safeguards against abuse—for example, using remote voting just for convenience—but it is a needed safeguard to make sure the Senate has full and adequate representation.

There is no obvious answer when an octogenarian or nonagenarian, elected by the voters of a state, insists on serving even when they are not capable of doing so adequately. But we can avoid most of the problems that occur with lengthy absences from the Senate. It would be a fitting tribute to the long and distinguished career of Dianne Feinstein if the Senate finally acted to resolve these issues.