This article is part of The D.C. Brief, TIME’s politics newsletter. Sign up here to get stories like this sent to your inbox.
The news of ailing Senator Dianne Feinstein’s return to Washington this week crackled through Capitol Hill aides’ messaging apps, journalists’ note-trading clouds, and donors’ inboxes. The oldest member of the Senate had come back to work after almost three months away, recovering from illnessesses that weren’t entirely disclosed during her absence, and she looked markedly older than when she had left. The senior Senator from California was back, but was she really?
There’s nothing Washington likes better than second-guessing, and the Feinstein situation was no different. The 89-year-old icon has made clear, at least for the moment, that she would ignore the merciless drumbeat of calls for her to cede the seat immediately to someone who can discharge the duties more consistently.
As The D.C. Brief wrote last week, Feinstein is giving a masterclass in how to mangle a legacy in what could be its final chapter. And yet, that verdict—along with dozens of others like it emerging from D.C. and around the country in recent days—may have missed the point.
Here’s an updated take that will undoubtedly draw some objections: Feinstein holding the seat until the election next year may be the most responsible thing she can do in case of one possible, albeit unlikely, scenario: a vacancy on the Supreme Court. In indulging her stubbornness, her ego, her paranoia—whatever we want to call it—Feinstein may be what stands between a 6-to-3 conservative Supreme Court majority tilting to a 7-to-2 position, or the key to it shifting back to 5-4. Either of those outcomes would be one liberals may regret not having taken more seriously.
More from TIME
The reason why Feinstein holds all this power is tied to her seat on the Senate Judiciary Committee. Democrats have an 11-to-10 advantage over Republicans on the panel, giving them zero margin for error in advancing President Joe Biden’s nominees for lifetime appointments to federal courts, including the Supreme Court. A tied 10-to-10 vote, at least under the current rules, leaves those nominees potentially stuck in limbo. Whenever she’s absent, Feinstein leaves Democrats on the committee with an insufficient 10 votes.
So one might argue that all that is more reason for Feinstein to resign, and let a younger, healthier Democrat take over her spot on the committee. But that’s not what would be guaranteed to happen. Even if Feinstein were to leave her seat early, allowing California Gov. Gavin Newsom to appoint an interim lawmaker until after the 2024 election, there is nothing ensuring that that successor could be the 11th vote on Judiciary. Committee assignments are part of the start of every Congress, and changes are subject to 60 votes if some lawmakers object and demand a recorded vote. That means 10 Republicans would have to allow Democrats to either send Feinstein’s replacement or another lawmaker into that role. There is scant evidence that Republicans would accede to that request.
Need proof? In April, the Senate considered Feinstein’s request that she be allowed to step away from Judiciary for a beat, and to allow another Democrat to take her seat. The effort, clearly heading to defeat, wasn’t even put to a floor vote. Even in a body known for its cordiality across party lines, Republicans saw the ability to confirm nominees to lifetime gigs in robes and wielding gavels as more important than courtesy to an ailing colleague. “We’re not going to help the Democrats with that,” Republican Sen. Joni Ernst of Iowa said.
Fellow Republican Sen. Mitt Romney of Utah was even more transparent about his party’s intentions: “I don’t think Republicans are going to lift a finger in any way to get more liberal judges appointed, 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,” he said.
Bad juju? Arguably. Good politics? Probably, especially if you’re a partisan wearing a red jersey.
By an objective measure, Feinstein’s best days are behind her. She made a name for herself as a fierce advocate for her ideals, an independent mind who famously defied the intelligence agencies and a President from her party. Yet Feinstein has been coasting on her reputation for some time. Even her biggest defenders will acknowledge she has missed a beat, and her friends—especially her female ones, to whom she has been a role model and mentor—have found her brushback frustrating. Her ability to effectively advocate for the state of California is questionable.
Feinstein’s choice is hers alone. While the 25th Amendment provides a mechanism from removing an unfit President—a process considered by Donald Trump’s own Cabinet after the Jan. 6, 2021, insurrection—there is nothing that provides for the ousting of a sitting Senator for incapacitation. Of the 15 Senators in history to be booted from their gigs, 14 of them were Confederate supporters and the final one was for treason. The last time Senators even considered such moves was in 1995, and Sen. Bob Packwood resigned in the face of abuse of power and sexual misconduct allegations. (He later found redemption as a high-powered lobbyist.)
For more than a year, the rumble about Feinstein’s age and fitness in the job has been growing. When she was hospitalized in February for shingles, Democrats accepted that they were in a holding pattern until Feinstein could recover and resume her unapologetic pursuit of an agenda she sees as righteous.
But Feinstein, outwardly, hasn’t seemed to recover. Her return came via wheelchair, her face frozen, and her mind seemingly distracted. It has now come out that her shingles has spread to her face and neck, leaving her vision and balance impaired. Her face is, for now, paralyzed. Swelling in her brain brought on by post-shingles encephalitis could lead to difficulties walking, talking, remembering, or sleeping.
When she met with reporters on Tuesday, after casting a vote while standing on her own, she appeared—at best—confused. When a reporter asked how she was being welcomed back by colleagues, she said she had never been away. “No, I haven’t been gone,” she said. “You should follow the—I haven’t been gone. I’ve been working,” she continued. So working from home, then? “No, I’ve been here. I’ve been voting,” she said. “Please. You either know or don’t know.”
Clearly, this is not serving Feinstein’s legacy well, at least not at the moment. But there is an argument—a cynical, craven, dark one, to be fair—that can be made that Feinstein is playing the long game. Should an opening on the Supreme Court come to pass, a Feinstein-free Senate may not be able to do anything until 2025. That could push that decision beyond Biden’s reach and potentially into the hands of a Republican President should Biden lose his re-election bid. (Remember: Senate Republican Leader Mitch McConnell held up Barack Obama’s pick for the high court, Merrick Garland, for 293 days.) The 2024 Senate map is about as hostile for Democratic incumbents as we’ve seen in some time, meaning their continued control of the chamber is far from assured, too.
To be clear, no one expects a Supreme Court retirement is imminent. The three Democratic-nominated Justices range from ages 52 to 68, and the six Republican-tapped ones—ages 51 to 74—are expected to stay in office until they can have a GOP President to nominate their successor. The Supreme Court’s average age right now is 62 years old, but the unexpected is what roils Washington.
So it comes down to whether Democrats can quiet their churn about a less-than-lion Feinstein in the seat in case they can get a high court pick and Republicans hold the line, or whether they sabotage themselves in pursuit of doing what they see as the right thing. The record here should give Democrats little reason to show swagger.
Make sense of what matters in Washington. Sign up for the D.C. Brief newsletter.
- Who Will Be TIME's Person of the Year 2023?
- Why Cell Phone Reception Is Getting Worse
- The Dirty Secrets of Alternative Plastics
- Column: It's Time to Scrap the Abraham Accords
- Israeli Family Celebrates Release of Hostage Grandmother
- In a New Movie, Beyoncé Finds Freedom
- The Top 100 Photos of 2023
- Want Weekly Recs on What to Watch, Read, and More? Sign Up for Worth Your Time