On the menu today: Democrats are starting to tear their hair out because their Senate majority is partially nullified or impeded by the continued absence of California senator Dianne Feinstein. Their concern is worsened by the fact that Feinstein, who last voted in the Senate on February 16, has no estimated return date — and the fact that she agreed to an attempt to put a temporary substitute on the Senate Judiciary Committee is a de facto admission that she does not expect to return anytime soon. But Feinstein is just one of three elderly or visibly impaired lawmakers who are being less than fully honest with the public about their health and conditions. For a long time, people have warned that the top level of the American government was becoming a “gerontocracy,” and now we are living with the consequences.
Our Unhealthy Leadership
The operations of the U.S. government are currently mildly impaired because three extremely old or otherwise visibly impaired lawmakers are being less than fully honest with the public about their health and conditions.
Let’s begin with California senator Dianne Feinstein, who is 89 years old and turns 90 in June. She is recovering from shingles, and since the year began, has missed 79 percent of the votes taken in the Senate. A bit more than a week ago, Feinstein issued this statement:
When I was first diagnosed with shingles, I expected to return by the end of the March work period. Unfortunately, my return to Washington has been delayed due to continued complications related to my diagnosis.
I intend to return as soon as possible once my medical team advises that it’s safe for me to travel. In the meantime, I remain committed to the job and will continue to work from home in San Francisco.
I understand that my absence could delay the important work of the Judiciary Committee, so I’ve asked Leader Schumer to ask the Senate to allow another Democratic senator to temporarily serve until I’m able to resume my committee work.
You will notice that statement does not include any indication of when Feinstein will be able to return to Washington. Earlier this month, Politico reported, “Multiple Democrats close to her, as well as top-ranking congressional aides, are growing increasingly concerned that she may never come back to Washington at all.”
Under normal circumstances, the Senate Judiciary Committee would have ten Democrats and nine Republicans. Without Feinstein, the committee splits evenly, and a nominee requires a majority to advance to a vote by the full Senate. As of last week, twelve judicial nominees are waiting for a committee vote, and six are waiting for hearings before the committee. For perspective, so far, 119 federal judges have been confirmed since Biden took office.
Senator Ted Cruz, who is on the committee, pointed out recently on his podcast that this doesn’t mean that the Judiciary Committee can’t confirm any judges; it simply means the panel will not confirm nominees who are so extreme, unqualified, or otherwise flawed that they cannot get a single Republican vote.
“[Ranking member Lindsey Graham] votes to confirm most Biden judicial nominees,” Cruz said. “I vote against almost all Biden judicial nominees. But given that Lindsey votes for practically all of them, the Democrats can move almost the entirety of Biden’s judicial slate. The ones they can’t move are the most radical or the nominees that are so extreme.”
As for Feinstein’s request for a temporary replacement, that move would require “unanimous consent” — that is, every senator would need to agree.
Senate Minority Leader Mitch McConnell is back in the chamber after a fall that left him with a rib fracture and a concussion, and he could probably use a good laugh. I just hope he didn’t re-injure his ribs from laughing so hard, after Senate Majority Leader Chuck Schumer asked him to acquiesce to temporarily replacing Feinstein on the Judiciary Committee. It is not the job of Senate Republicans to save Senate Democrats from the consequences of the decision of one of their own members.
“Senate Republicans will not take part in sidelining a temporary absent colleague off the committee just so Democrats can force through their very worst nominees,” McConnell said.
If Democrats want Feinstein off the Judiciary Committee, they’re going to have to persuade her to resign from the Senate.
The truth is, Feinstein should have resigned quite some time ago. She is no longer able to function as a senator, and we have seen signs of these problems since at least 2018. On several occasions, Feinstein quickly reversed herself after making a public statement the day before, and then insisted she never said what she said, even though her initial comments were given to a scrum of reporters recording her. By 2020, Jane Mayer of the New Yorker more or less announced it was no longer socially and politically required to pretend not to notice Feinstein’s memory problems, writing, “Many others familiar with Feinstein’s situation describe her as seriously struggling, and say it has been evident for several years. Speaking on background, and with respect for her accomplished career, they say her short-term memory has grown so poor that she often forgets she has been briefed on a topic, accusing her staff of failing to do so just after they have.”
Last year, the San Francisco Chronicle reported, “The 88-year-old lawmaker is allegedly struggling to recognize colleagues and follow policy discussions.” The anecdotes were painfully familiar to anyone who has dealt with an elderly parent or grandparent losing their memory and growing increasingly confused:
When a California Democrat in Congress recently engaged in an extended conversation with Sen. Dianne Feinstein, they prepared for a rigorous policy discussion like those they’d had with her many times over the last 15 years.
Instead, the lawmaker said, they had to reintroduce themselves to Feinstein multiple times during an interaction that lasted several hours. . . .
“I have worked with her for a long time and long enough to know what she was like just a few years ago: always in command, always in charge, on top of the details, basically couldn’t resist a conversation where she was driving some bill or some idea. All of that is gone,” the lawmaker said. “She was an intellectual and political force not that long ago, and that’s why my encounter with her was so jarring. Because there was just no trace of that.”
Feinstein’s worsening health and memory problems are an open secret on Capitol Hill, and even some House Democrats are tired of maintaining the charade that she’s capable of performing her duties. Dean Phillips, a Minnesota Democrat, was surprisingly blunt about the matter on Meet the Press Now yesterday:
REP. DEAN PHILLIPS: Well, what I say first is Senator Feinstein is a remarkable American, her service is extraordinary. But this is not about us. This is about our country. And we have a crisis of honesty in Congress, I think that’s fair to say. And I’m tired of serving with people who say one thing privately and refuse to say the same thing publicly. And I call on all my colleagues, both Democrats and Republicans, frankly, to hold ourselves more highly accountable. This is not about her battle with shingles. It’s not about her age, we have a number of aged members of Congress who are wonderfully effective. This is about competency. And I know those who serve most closely with her are aware of exactly what I’m speaking about. It has consequences. She’s remarkable. But this is not a culture, a Congress, that should be protecting our own at the expense of our country. And that’s I’m afraid where we’re heading right now.
KRISTEN WELKER: You say something interesting, which is the folks who are willing to speak out privately but not publicly, and so it begs the question, have you heard from some of your colleagues, some of your colleagues in the Senate, who say to you, yes, I agree with what you’re saying, but I’m not prepared to say it publicly. I’m not prepared to say it out loud.
PHILLIPS: Absolutely. Yes.
WELKER: How many would you say?
PHILLIPS: Countless. Kristen, I, if you took a survey of those in the Congress, both the House and Senate on the subject, I know what the results would be, and my colleagues know, but we have a culture of protecting ourselves at the expense of the country.
WELKER: And countless senators, just to be clear, Congressman, countless senators?
PHILLIPS: Absolutely, yes, absolutely.
WELKER: Okay. Are you prepared to name any of them?
PHILLIPS: No, I’m not gonna, I’m not gonna out other people. They know who they are.
Feinstein is also on the Intelligence, Rules, and Appropriations committees, where another senator is taking over her work running the Energy and Water Subcommittee.
Both ABC News and the Huffington Post are having flashbacks to the late Supreme Court justice Ruth Bader Ginsburg’s refusing to heed calls for her retirement while Democrats controlled the Senate. In 2013, then-president Barack Obama had lunch with Ginsburg and tried to gently prod her toward retirement, emphasizing “the looming 2014 midterm elections and how Democrats might lose control of the Senate.”
Of course, President Joe Biden cannot attempt to have a similar conversation with Feinstein, because the president is 80 years old, maintains a strikingly light schedule for a sitting president, intends to run for another term, and is in a condition where he rambles about how much he loves ice cream before he discusses a school shooting. If Biden were to tell Feinstein, “I think it’s best that you resign from your office, because you’re no longer in physical and mental state where you can adequately preform your duties,” Feinstein could well shoot back, “You first.”
Finally, there is Pennsylvania senator John Fetterman, who returned to the Senate this week after six weeks of inpatient treatment for clinical depression at Walter Reed National Military Medical Center. Fetterman has missed 76 percent of the Senate floor votes since the beginning of February. The Pennsylvania senator chaired a subcommittee hearing Wednesday, and you can watch his reading of his opening statement here and asking a question of a witness here. It is fair to say that Fetterman is still having great difficulty communicating.
I will remind you that Fetterman’s primary-care physician said in a public letter written in October 2022 that Fetterman “has no work restrictions and can work full duty in public office.” Nearly six months later, it is now abundantly clear to anyone with eyes that Fetterman is in really rough shape, and everyone in America should hope for his full recovery. It is more than reasonable to ask if Fetterman or the people of Pennsylvania are best served by him remaining in office.
You can forgive Democrats for seething at the fact that they put in enormous effort to win a 51–49 majority in the Senate in last year’s midterms, only to have Feinstein and Fetterman out for so much of the year and giving them a 49–49 or 50–49 split.
Republicans shouldn’t chuckle too much, because they have their own share of geriatric senators and could well face a similar dilemma someday. Chuck Grassley of Iowa is 89, McConnell is 80, Jim Risch of Idaho is 79. At this point, all these senators seem to still have their marbles, but as we’ve seen with Feinstein, memory issues and confusion can worsen over time. The country would be better off if there were clearer “rules of the road” for when a lawmaker should retire, or when age becomes an impediment to a lawmaker’s ability to do his job. The country doesn’t have a 25th Amendment for positions besides the president and vice president, and while America has had plenty of elderly members of Congress, I suspect few ever expected we would reach this point, where senators who are so self-evidently impaired refuse to resign their seats.
ADDENDUM: Our Jack Crowe has a fascinating detail about the recent Fox News/Dominion settlement:
The network is going to be able to claw back as much as $213 million of the settlement through tax write-offs. . . . The company will save roughly one-third of the settlement cost on this year’s tax bill, not to mention the portion of the settlement that will be covered by insurance.