San Francisco Chronicle - (Sunday)
Feinstein, Harris to signal Dems’ longterm tactics
WASHINGTON — With a political maelstrom growing over replacing the late Justice Ruth Bader Ginsburg on the Supreme Court, California’s two senators will not only be major figures in the immediate confirmation fight — their approach to it will also signal Democrats’ longterm strategy against Republicans.
Sen. Dianne Feinstein is the topranking Democrat on the Judiciary Committee, which handles judicial nominations. And Sen. Kamala Harris is the
Democratic nominee for vice president as well as a member of that committee.
They hold divergent views of how Democrats should fight political battles, tactics that will be tested in coming weeks now that Senate Majority Leader Mitch McConnell has said the Senate will vote on the nominee President Trump picks to fill Ginsburg’s seat. McConnell, RKy., appears determined to confirm a Trump pick even if Joe Biden wins the White House in November and Democrats flip enough seats to gain control of the Senate starting next year.
Feinstein, 87, has served in the Senate since 1992, earning the top Democratic spot on the Judiciary Committee by seniority. She tends to seek bipartisan cooperation and is a proponent of upholding Senate traditions. Her demeanor is always polite, even when Republicans use tactics that her Democratic colleagues believe deserve something besides respectful disagreement.
Harris, 55, was elected to the Senate in 2016, and quickly made a reputation as one of its most progressive members. She has voted against Trump’s judicial and Cabinet nominees at one of the highest rates among her peers, and is of a Democratic generation that often sees Republicans as badfaith actors who should not be given the benefit of the doubt.
Feinstein will be the captain of Democrats’ strategy in the Senate to delay, stop or punish Republicans’ push to confirm a Trump pick. And Harris will be both an essential part of her party’s questioning of a nominee and second to Biden in arguing that the future of the court is a main reason to vote for the Democratic ticket.
In reality, there’s little either senator can do to stop Republicans from confirming Trump’s nominee, as long as McConnell can minimize defections from his party’s 5347 majority.
But progressives were already fearful of the possibility of a Supreme Court confirmation fight led by Feinstein this year, arguing that she lacks the strongarm skills that Democrats will need.
“The lack of fire, the lack of urgency, is a tell that she’s not going to be the person to take a bareknuckle approach in the trenches,” Brian Fallon, a former senior Senate aide who founded the group Demand Justice to push the party left on the judiciary, told The Chronicle in June.
Steve Haro, who was previously Feinstein’s chief of staff and is now a lobbyist, called it naive for progressives to expect Democrats to stop a nominee, saying the Senate ultimately “is a numbers game, and Republicans hold the cards.”
He called criticism of Feinstein’s handling of past nominations unfair, saying Democrats pulled all the levers they had at their disposal.
“What’s left is pressure, what’s left is holding these (Republican) folks accountable, trying to make them understand that past actions should set the precedent for how they should act now,” Haro said of Democrats’ options.
In a statement Friday night, Feinstein said she would oppose confirming a new justice before inauguration day, noting that McConnell refused to consider thenPresident Barack Obama’s nominee to fill the late Justice Antonin Scalia’s seat in 2016 because it was an election year.
“We’re just 46 days away from an election,” Feinstein said. “To jam through a lifetime appointment to the country’s highest court — particularly to replace an icon like Justice Ginsburg — would be the height of hypocrisy.”
Harris echoed the sentiment in a latenight statement. “Tonight we mourn, we honor, and we pray for Justice Ruth Bader Ginsburg and her family. Tomorrow we fight for her legacy,” Harris said Friday. “In some of her final moments with her family, she shared her fervent wish to ‘not be replaced until a new president is installed.’ We will honor that wish.”
But Democrats will be looking for more than statements of disagreement from Harris, Feinstein and other senators, this fall and looking ahead to next year.
“Dems will have to counter with more than a thisisn’tfair argument,” David Corn, a political journalist, wrote for the leftleaning outlet Mother Jones on Friday night. “Bring a gun to a knife fight? They will need a bazooka. Sorry if that sounds violent. But, as one sage person likes to say, we are in a fight for the nation’s soul.”
Feinstein faced criticism for her handling of the Democratic opposition to the confirmation of Justice Brett Kavanaugh in 2018, and there is still lingering resentment over it among progressives. While Feinstein opposed his nomination, she honored Christine Blasey Ford’s original request to keep secret allegations that Kavanaugh sexually assaulted her when they were in high school. The Palo Alto University professor’s charges became public only when they were leaked well into the confirmation process.
Feinstein’s critics also note times when she seemed confused during the process, including an instance in which an aide stepped in to remind her during a Judiciary Committee hearing that she had questioned staffers about whether they leaked the letter, moments after she said she had not. Her spokesman and Senate colleagues, however, have maintained that she is a strong leader for the committee.
Harris, meanwhile, saw her star rise after that confirmation hearing, with a memorable confrontation that included her asking Kavanaugh whether he could think of any law regulating a man’s body, a reference to abortion rights.
But Harris will also be pulled between the fight in Washington, where she has been largely absent since joining the Democratic ticket, and backing up Biden, who tends to view the Senate much like Feinstein. He and Feinstein served together on the Judiciary Committee, which Biden chaired in the 1990s.
Pressure is already on Democrats not just about this fall, but what they will do next year if Biden is elected and Democrats win control of the Senate. Friday night, progressives began calling for increasing the number of seats on the Supreme Court to counter what they view as the GOP’s theft of, first, Scalia’s seat and, now, perhaps Ginsburg’s.
There is also considerable progressive support for doing away with the filibuster rule that requires a 60vote supermajority to pass virtually any legislation in the 100member Senate, a move that Obama himself has endorsed. Harris said during her presidential run that she was prepared to end the filibuster.
Fallon, of Demand Justice, tweeted that Democrats must oppose any nominee before the election, beat Trump in November and forestall any confirmation until Biden takes office. But, he said, “if GOP rams Trump pick thru anyway, add seats to the Court This is the play. There is no other play.”
Massachusetts Democratic Sen. Ed Markey tweeted that if the Republicans confirm a justice before January, “we must abolish the filibuster and expand the Supreme Court.”
During the Democratic primaries, when the question was merely hypothetical, Biden was less inclined to take bold action on changing the Supreme Court. He told Iowa Starting Line in July 2019 that Democrats would “rue that day” if they packed the court. In an October debate, he said that if Democrats add justices, “next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
Haro, Feinstein’s former staffer, said he expects both Harris and Feinstein will bring everything they can to the confirmation fight in the short run.
“I have absolutely no doubt that they will make a good argument as to why patience should win out the day,” Haro said. “And then it will be on Republicans to make the right decision.”