Sen. Dianne Feinstein, D-Calif., leaves the U.S. Capitol after a vote, May 11, as she returned to Washington, DC, after being absent from the Senate for months due to illness. Kent Nishimura/Los Angeles Times via Getty Imag hide caption
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Kent Nishimura/Los Angeles Times via Getty Images
Sen. Dianne Feinstein, D-Calif., leaves the U.S. Capitol after a vote, May 11, as she returned to Washington, DC, after being absent from the Senate for months due to illness.
Kent Nishimura/Los Angeles Times via Getty Images
When the Senate returns from its Independence Day recess next week, one of the main focuses for Democrats will be their dependence on a member of their ultra-thin majority.
California Democrat Dianne Feinstein took part in the Senate on the last day the chamber held recorded votes. It was June 22, which was also his 90th birthday.
Feinstein is the oldest member of the current Senate, eclipsing Iowa Republican Charles Grassley by a few months. But Feinstein has been missing from the Senate for much of the current session, recovering in California from a bout of shingles complicated by encephalitis and other illnesses.
During his months of absence lost by 91 votes, more than any other senator, and nearly two-thirds of all Senate calls this year. His absence also left a vacant seat on his committees, most notably the Judiciary, where without his vote, Democrats could only tie. That delayed for months the confirmation of several of President Biden’s appointments to federal judges and executive positions.
When Feinstein asked in April to be temporarily replaced on the committee, Republicans objected. That extended the delay until Feinstein was able to return in May.
The senator’s office has announced he will not seek re-election in 2024. Some Democrats outside the Senate have publicly called on him to step down now so California’s Democratic governor can name a successor and the Judiciary Committee can have a new member.
But Feinstein has refused to back down or even discuss it, at least until now. This means that for the rest of the 118th Congress, his ability to attend and vote will be a matter of great concern to his party.
It also raises questions about the institution’s ability to deal with its internal problems of absence due to aging or disability.
Far from being new, these issues have been part of the peculiar meaning of the Senate and the prerogatives of its members throughout the history of the institution.
The legendary Strom Thurmond of South Carolina served in the Senate until shortly after his 100th birthday, serving as Senate President Pro Tempore. Also serving until the end was Robert C. Byrd of West Virginia, who died in 2010 at age 92 after 51 years in the Senate (still the record).
The job of Senate President pro tempore is largely ceremonial, but it is an honor usually bestowed upon the longest serving member of the majority party. Right now, that would be Feinstein. But as Democrats rallied for the current session, Feinstein declined the role.
The gavel pro tempore went to Washington State’s Patty Murray. Both women were elected in November 1992, but Feinstein was sworn in earlier because she was finishing an unexpired term.
An unusual way to vote yes
Like Byrd and others in the past, Feinstein has moved around the Capitol in a wheelchair lately. But from that moment on, he didn’t need any help to physically cast his vote.
The Senate requires members to be present and make their vote known by an open statement. This usually includes an audible ‘yes’ or ‘no’ announcement and sometimes a physical thumbs up or down as well.
On occasion, the Senate has seen weakened senators cast their votes quite dramatically.
Two of Feinstein’s predecessors in California have been brought to the Capitol from hospitals by ambulance and carried on stretchers to cast crucial votes.
The first was Senator Clair Engle, a Democrat whose vote was needed on the June day in 1964 when the Senate broke the filibuster that had blocked what became the Civil Rights Act.
Although only 52, Engle had recently undergone surgery for a brain tumor and had been absent from the Senate for weeks. At that time, the chamber was closed to one 75-day filibusters by southern Democrats opposed to civil rights legislation.
When Engle walked up the steps of the Capitol that day, no one could be sure that the Democratic majority and its allies on the Republican side had the 67 votes needed at that moment to break a deadlock.
When the roll call began, Engle was in the chamber with Senate Majority Leader Mike Mansfield by his side. When the clerk called “Mr. Engle,” the Californian, too weak to speak, he slowly raised an arm and pointed to his right eye.
Cameras weren’t allowed in Congress in those days, but as word got out the cheers started. Engle again voted for final passage of the bill later that month. He died six weeks later.
Voting under sedation
Another dramatic vote that resonated for years was cast two decades later by California Republican Pete Wilson. In 1985, early in President Ronald Reagan’s second term, Wilson suffered a bout of acute appendicitis and had to undergo emergency surgery. While recuperating at Bethesda Naval Hospital, a critical vote on a Reagan budget plan came before the Senate. Among other thorny issues, the plan temporarily froze increases in Social Security benefits.
Desperate for votes, Senate Majority Leader Bob Dole sent an ambulance to Bethesda to look for Wilson. When the sick senator’s hospital gurney proved too large for the Senate elevator, he was transferred to a wheelchair and rolled into the room. He voted loudly and was expelled.
Sen. Pete Wilson, R-Calif., is ejected from the Senate Chamber after voting on the 1986 budget in Washington on May 10, 1985. Wilson, who underwent surgery for a ruptured appendix on Wednesday, he was summoned from Bethesda Naval Hospital and taken to the Capitol by ambulance. J. Scott Applewhite/AP hide caption
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J. Scott Applewhite/AP
At a later celebration, Dole described how he handled the scene and joked with Wilson voted “better under sedation”. Typical of Dole’s biting wit, the line was widely repeated and even used an attack ad from Wilson’s Democratic opponent when he ran for governor of California in 1990.
Wilson still won and became governor. But his Democratic opponent in that 1990 race later took his Senate seat by defeating his designated successor. That Democrat was Dianne Feinstein.
Institutional aspects of concern
So far, nothing about Feinstein’s recent illness and absence has reached this level of drama, but given her party’s current one-seat majority in the Senate, a control crisis could happen any day.
The most important issue here is not the fate of a bill or a senator, but the overall viability of political institutions that depend on the unpredictable capacities of human beings.
The framers of the Constitution knew that Congress would be subject to human frailty, but they also assumed that it would be made up of the most capable people the new country could find. Many of these people served in the early years of the republic and in each successive generation.
But there has never been a clear standard or a guarantee of capacity. Unable to ensure a level of quality, the editors also failed to contemplate the existence or effects of political parties or the power and excesses of partisanship.
Nor did they foresee cases of long-term absence due to aging or illness. In an article this year in The Atlantic, noted congressional scholar Norm Ornstein cited the egregious example of Karl Mundt, a senator from South Dakota who suffered a stroke in 1969 and “remained unable to work while holding his Senate seat until his term expired. finish in January 1973″.
He also noted that in recent decades, Tim Johnson of South Dakota and Mark Kirk of Illinois “had brain injuries that kept them out of the Senate and faced months of surgery and rehabilitation” and prominent senators Ted Kennedy and John McCain were absent during the last decades. extended periods before dying of brain tumors.
The Senate can expel a member, but that requires a two-thirds vote and is almost unthinkable given the partisan impact alone. But Ornstein noted that the only option is “to live with a long-term vacancy or a senator who is really incapable of making the right decisions. This is not a new problem, but it is one that we have to address, eventually.”
On another level, the Senate was never equipped to contemplate an event like 9/11 or the COVID-19 pandemic. What if the Senate could not fulfill its function because it did not have a quorum to do business?
After 9/11, the Brookings Institution and the American Enterprise Institute, where Ornstein is a resident scholar, created a “Government Continuity Commission” to consider these questions.
The original commission recommended “temporary emergency replacements” that could serve “until incapacitated lawmakers can sign affidavits indicating they are ready and willing to resume their seats.”
After the pandemic began, commissioners recommended remote votes in committee and on the floor when members couldn’t physically come to the Capitol. The House temporarily adopted a system of voting by delegation, but it was abandoned in the 118th Congress.
“The Senate,” Ornstein noted ruefully, “did nothing.”
The Senate is famously fond of its traditions and, in times of thin majorities, is driven by the imperatives of maximizing partisan power. The combination has so far proved strong enough to prevail over everything else.
