Senator Dianne Feinstein (D-CA), one of the Democratic Party’s leading ladies for years, is presently unable to fulfill her duties on the Senate Judiciary Committee. And in her absence during these divided times, the panel finds itself locked in a 10-10 party-line tie, effectively nullifying any attempt to confirm what Republicans call President Joe Biden’s most partisan judicial nominations. Sen. Feinstein isn’t the only senator to upset the congressional apple cart with a medical absence. Newly minted Sen. John Fetterman (D-PA) and Senate Minority Leader Mitch McConnell (R-KY) both just returned from long absences, as well. What can be done to address these absent politicians?
The Absent Politicians
Sen. Fetterman announced in mid-February that he would be hospitalized and treated for clinical depression. He spent more than a month at Walter Reed National Military Medical Center, not doing his job, and only returned to work this week. With the tight split in the upper chamber, Fetterman’s absence raised questions about the security of the Democratic agenda. On March 8, however, Sen. McConnell tripped and fell at a private dinner at the Waldorf Astoria in Washington, DC, and suffered a concussion. He was whisked away to the hospital and released to an inpatient rehabilitation center days later. He, too, returned to work Monday, April 17.
Sen. Feinstein, however, has been out with a bad case of shingles since late February. An April 12 statement from her office announced that lingering symptoms kept her from returning for now. Though she looks forward to getting back to work soon, it’s unclear just how long she’ll need to remain home. Like both Fetterman and McConnell, Feinstein doesn’t quite shift the balance of power in the full Senate by herself, but a small handful of politicians all out at the same time certainly can. And in this case, specifically, her absence does put the Judiciary Committee into a party-line deadlock. Republicans refuse to advance Biden’s judicial nominees, and, so far, they aren’t giving in to Democrats’ demands for a Feinstein replacement, either. Democrats want their counterparts across the aisle to either have one of their members abstain or, if nothing else, at least let them replace Feinstein on the committee. Since she’s still technically a senator, however, a replacement would require a 60-vote majority of the full chamber, so there isn’t much Democrats can do about Republicans’ refusal but complain.
New Situations, New Rules?
No matter how much planning one does, it’s difficult to account for every possibility. Few examples illustrate this fact better than a Minor League Baseball game back in 2008. On June 19 of that year, Staten Island Yankees pitcher Pat Venditte faced off against Ralph Henriquez, a switch hitter for the Brooklyn Cyclones. Henriquez entered the box batting right-handed, so Venditte switched his glove to his left hand. Henriquez then changed position to bat left-handed, causing Venditte to change back. They went back and forth several times, causing umpires, managers, and players alike to argue the rules on the field before Henriquez eventually agreed to bat right and was struck out, ending the game. And thus was born the ambidextrous pitcher rule, more commonly known as the Pat Venditte Rule, which requires pitchers to indicate to the ump and batter which hand they’ll be pitching with and limits the number of times it can be changed.
The rule didn’t exist for most of professional baseball history, but, of course, it wasn’t needed for most of professional baseball history. Truth be told, it probably won’t be needed much in the future, either. But for several hilarious and probably frustrating minutes during a ballgame in 2008, it was.
In politics, the 25th Amendment to the US Constitution is probably the best example of this. Prior to it, eight vice presidents had to step up and fill the lead role in the Oval Office – but several times in the nation’s history, there had been no VP, either due to a resignation or death in that office. Perhaps most confusing, however, were the times when the president remained alive but was was unable to perform his duties. James Garfield was in a coma for eighty days before dying after he was shot. Woodrow Wilson suffered a stroke and was incapacitated to some degree for the last 18 months of his term. Eventually, it became clear the rules of presidential succession simply couldn’t account for every situation.
The Great Divide and Tit-for-Tat Politics
Is it time now for a new rule in the Senate? Clearly, the old ways don’t account for the current situation. Historically, when one side lost a voting member who couldn’t be replaced before a crucial vote, one member across the aisle would abstain – a lost practice for which Democrats presently mourn.
(Photo by Drew Angerer/Getty Images)
In recent years, however, we’ve watched the two parties in Congress refuse to work together more often than not. Politicians refuse to confirm the other side’s nominations or pass their bills – and it rarely matters who’s in power; Democrats are just as guilty of this as they accuse Republicans of being. Politicians are, after all, politicians.
In the previous Congress, for example, when they controlled a technical trifecta of government control, Democrats used every method available to bulldoze their way through any GOP resistance to even the most partisan of bills rather than work with their colleagues across the aisle to find a compromise. Instead of demanding the president nominate more moderate appointees, Democrats confirmed progressive activists into positions of power using VP Kamala Harris to break ties. It was the Democrats, in fact, who demanded a reinterpretation of the reconciliation process to pass socialist spending bills without any GOP support, and who, years ago, began the tit-for-tat process of eliminating the filibuster for presidential nominee confirmations. A change in Senate rules to address the absence of a committee member, however, could guarantee both sides a solution, freeing Republicans today from the fear that, should they accommodate the Feinstein situation, the Democrats wouldn’t return the favor later.
But just as the hyper-partisan divide prevents Feinstein’s replacement, so too does it render any rule change a pipe dream. If Republicans aren’t willing to have one of their own members abstain in her absence or to replace her on the committee, why would they agree to a change in Senate rules to account for this situation in the future? In the age of tit-for-tat partisan politics, and after the Democrats toyed with the rules to run roughshod over the GOP in the previous Congress, perhaps the more relevant question is why should they?
