--- title: In Defense of Dianne Feinstein Not Quitting (No, Really) description: Liberals calling for the ailing Feinstein to quit haven't considered the prospect of a Supreme Court vacancy before the 2024 election. canonical: https://time.com/6281088/dianne-feinstein-quit-supreme-court/ author: Philip Elliott article:opinion: false article:content_tier: free article:published_time: 2023-05-18T22:02:15.000Z article:modified_time: 2026-08-04T07:51:13.116Z article:section: Politics og:title: In Defense of Dianne Feinstein Not Quitting (No, Really) og:description: Liberals calling for the ailing Dianne Feinstein to quit haven't considered what that would mean for one possible, albeit unlikely, scenario: a vacancy on the Supreme Court og:url: https://time.com/6281088/dianne-feinstein-quit-supreme-court/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt3e90a143e2a18004/698a3d2ae6e84a5c7b2b0233/GettyImages-1254328303.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 og:image:width: 1024 og:image:height: 576 og:image:alt: Senator Dianne Feinstein Returns To The Senate Judiciary Committee og:type: article twitter:card: summary_large_image twitter:title: In Defense of Dianne Feinstein Not Quitting (No, Really) twitter:description: Liberals calling for the ailing Dianne Feinstein to quit haven't considered what that would mean for one possible, albeit unlikely, scenario: a vacancy on the Supreme Court twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt3e90a143e2a18004/698a3d2ae6e84a5c7b2b0233/GettyImages-1254328303.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 ---  # Why Dianne Feinstein Shouldn't Quit > Sponsored content. 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Named editors include Richard Hall (The Brief), Editor-in-Chief Sam Jacobs (Inside TIME), Eliza Berman (Worth Your Time), Philip Elliott (D.C. Brief), Justin Worland (Future Proof) and Harry Booth (In the Loop). Health Matters is written by TIME's health desk. #### How do I sign up for a TIME newsletter? Go to time.com/newsletters, choose the newsletters you want and enter your email address. There is no cost and no subscription requirement. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-network-2026q3/newsletters?i=37cfd797-45af-4070-817d-a328471809c9&cr=time-nl-network-2026q3-v1) ## Video: Congress Still Divided As Government Shutdown Looms [Watch (HLS stream): Congress Still Divided As Government Shutdown Looms](https://cdn.jwplayer.com/manifests/bnzcILBQ.m3u8) (3:23)  _Published 2023-09-28. House Speaker Kevin McCarthy appeared optimistic Thursday morning after most of his Republican colleagues showed no interest in the Senate bipartisan proposal._  by [Philip Elliott](https://time.com/author/philip-elliott/)  ## Philip Elliott Senior Correspondent May 18, 2023 10:02 PM UTC  Senator Dianne Feinstein attends a Senate Judiciary Committee Hearing at the Hart Senate Office Building on May 11, 2023 in Washington, DC Senator Dianne Feinstein attends a Senate Judiciary Committee Hearing at the Hart Senate Office Building on May 11, 2023 in Washington, DC Kent Nishimura—Los Angeles Times via Getty Images  by [Philip Elliott](https://time.com/author/philip-elliott/)  ## Philip Elliott Senior Correspondent May 18, 2023 10:02 PM UTC _This article is part of The D.C. Brief, TIME’s politics newsletter. Sign up_ [_here_](https://cloud.newsletters.time.com/signup?nln=dc-brief&source=dc%5Fonsite) _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](https://time.com/6278008/dianne-feinstein-senate-legacy-durbin/) 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](https://www.cnn.com/2021/07/01/politics/supreme-court-6-3-conservative-liberal/index.html) 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](https://www.rules.senate.gov/rules-of-the-senate) 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](https://www.npr.org/2023/04/18/1170624504/mcconnell-says-republicans-will-block-effort-to-replace-feinstein-on-judiciary-p) Feinstein’s request that she be allowed to step away from Judiciary for a beat, and to [allow](https://www.vanityfair.com/news/2023/04/dianne-feinstein-judiciary-committee-senate-absence) another Democrat to take her seat. The [effort](https://www.washingtonpost.com/politics/2023/04/18/mcconnell-feinstein-replace-judiciary-committee/), clearly heading to defeat, wasn’t even put to a [floor vote](https://www.pbs.org/newshour/politics/republicans-block-temporary-replacement-for-sen-feinstein-on-judiciary-committee). 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](https://www.newsweek.com/dianne-feinstein-resign-democrats-judiciary-committee-1794950). 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](https://www.cnn.com/2023/04/17/politics/dianne-feinstein-mitch-mcconnell/index.html). 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](https://www.newyorker.com/magazine/2015/06/22/the-inside-war) 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](https://www.nytimes.com/2022/08/23/us/politics/trump-cabinet-25th-amendment.html) 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](https://www.senate.gov/about/powers-procedures/expulsion.htm) 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](https://www.nytimes.com/1995/09/08/opinion/the-packwood-resignation.html) in the face of abuse of power and sexual misconduct allegations. (He later found [redemption](https://www.politico.com/magazine/story/2014/02/bob-packwood-lobbying-politics-103966/) as a high-powered lobbyist.) For more than a year, the [rumble](https://www.sfgate.com/politics/article/reporter-details-feinstein-memory-lapse-17587048.php) about Feinstein’s age and fitness in the job has been [growing](https://www.sfchronicle.com/politics/article/dianne-feinstein-senate-17079487.php). 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](https://www.nytimes.com/2023/05/09/us/politics/feinstein-returns-senate.html) 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](https://www.washingtonpost.com/politics/2023/05/18/sen-feinsteins-health-complications-shingles-more-severe-than-disclosed/) could [lead](https://www.nytimes.com/2023/05/18/health/encephalitis-shingles-dianne-feinstein.html) 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](https://slate.com/news-and-politics/2023/05/dianne-feinstein-health-return-to-senate.html). 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](https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now) 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_](https://cloud.newsletters.time.com/signup?nln=dc-brief&source=dc%5Fonsite)_._ ## Transcript [00:00] They were offering a lot of them amendments for member to legislate [00:05] on both sides of the aisle to take a lot of that. [00:07] Determines how those turn out, where all the girls will be working [00:12] through that. But we got all that done. [00:14] That would be 73% [00:15] of all the discretionary spending that needs to get done now. [00:19] They haven't passed one. [00:23] That's why I believe, we need a stopgap measure, [00:27] to keep the government open and that's what will propose [00:30] on Friday to be able to have the government open and as well [00:34] same time, helping us be good for [00:36] Can you be on different pages with a solution to avert a government [00:41] shutdown? Are we any closer to a deal? [00:46] Well, I think we both work in the morning to some Democratic [00:51] senator over. There are more aligned with what we want to do, [00:55] what they want to do. [00:56] Something about the Border, still trying to work to see. [01:00] Could we put some border Provisions in the current Senate [01:05] bill, that would actually make things a lot better and so I'll [01:09] continue to work with them at the same time while we work with [01:11] are saying that the best way to crack down on the border as well [01:17] as to make sure that those border agents are down. [01:21] Yeah. And the best thing to is if you had fifty thousand, [01:24] people come across in 5 days to stop the engine. [01:27] So you can do that just as easily. [01:29] Then how do you avoid a shutdown by midnight on Saturday? [01:38] I know Sunday is football. [01:40] Day is the weekend sometimes we get right there with this play [01:44] is over time to get it done. [01:47] We're both all right, they haven't passed any finding it. [01:57] Interesting at all hands over here but that's okay. 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