Sen. Diane Feinstein And The Decline Of The Democrats

There may be no better measure of the decline of the Democratic Party than the fact that Senator Diane Feinstein is now widely regarded as one of its wise, moderate elder statesmen.

Even Politico seems to have noticed that something is amiss with the San Francisco Democrat. “If nominated to replace Anthony Kennedy on the Supreme Court,” it reported two days ago, “Amy Coney Barrett may have Sen. Dianne Feinstein to thank.

That’s because of her clumsy, ham-handed, and even offensive questioning of Prof. Barrett during her confirmation hearings for appointment to the Seventh Circuit. “I think whatever a religion is, it has its own dogma,” Senator Feinstein declared, proving she’s no better a theologian than she is a lawyer  (and she is not  a lawyer). “The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

That confrontation with Senator Feinstein, Politico reports, “vaulted Barrett, 46, onto the national stage. As Feinstein pressed her on whether she would be able to render judicial rulings faithful to the law given her deeply held religious beliefs, Barrett became a hero to religious conservatives who believe liberal Democrats target them for their faith.” Indeed, Ramesh Ponnuru, a senior editor at National Review quoted by Politico, argues that Feinstein “made her into a cause thanks to her ham-handed remarks” and goes on to claim that “you can make the case that if she is nominated to the Supreme Court that she will have Feinstein in part to thank for that.”

For my part, I would add that saying “the dogma lives loudly within you,” aside from its insult to religion, is such an odd, awkward expression that “ham-handed” is too kind. Makes me embarrassed that the Senator was a History major at Stanford.

Senator Feinstein, of course, does not want to see Amy Coney Barrett nominated to fill Justice Kennedy’s seat. In fact, she is leading the fight against anyone being nominated until after the midterm elections. I’m afraid, however, that her argument for delay— which just appeared as an OpEd in USA Today — makes her interrogation of Prof. Barrett seem positively nuanced and astute. The problem is not so much with the argument itself. In criticizing what they see as Republican hypocrisy for refusing a vote on Merrick Garland in an election year, as I acknowledged here, “the Democrats certainly have a point.” Not necessarily a persuasive point, but a point whose little light dims considerably after Senator Feinstein tries to develop it.

Leave aside trite partisan tripe with which she begins: “For 18 months, Senate Republicans have conspired with the Trump White House to pack federal courts with radical right-wing judges. They’ve run roughshod over Senate traditions meant to ensure a mainstream judiciary that will follow precedent and adjudicate cases fairly.” Conspired to pack federal courts? What a weird way to describe a president and senators doing their jobs of making and approving judicial appointments. Radical right-wing judges? Let’s give her that one since at least 40% or more of voters agree with those judges and Sen. Feinstein and her colleagues think those voters are radical right wing deplorables.

But as I said (but did not do myself), leave all that partisan posturing aside. Here is the core of Sen. Feinstein’s argument, such as it is:

Senate Majority Leader Mitch McConnell, R-Ky., objected to an Obama nominee nine months before an election. Today, we’re only four months from an election. If Americans deserved to have their voices heard then, they deserve to have them heard now.

With so much at stake, action on any Supreme Court nominee should wait until after the American people vote in November. It’s the right thing to do

First, is it true — and insofar as it is true, is it relevant — that “the American people vote in November”? Well, every House member is up for election, but then the House doesn’t have anything to do with approving judicial nominees. That leaves the Senate, but only a third of the Senate seats are at issue every two years. The voters who will vote in those Senate elections are, like all voters, important, but they hardly constitute “the American people.”

Moreover, as Sen. Feinstein presumably knows (although one can never be sure), most of those Senate seats up this year will re-elect the incumbent or someone from his or her own party, and thus the result will have no effect on the forthcoming vote, whenever it is, on Justice Kennedy’s replacement. Thus what Sen. Feinstein really means by waiting for “the American people” to vote for Senator is waiting for the voters in a small handful of states with contested elections — West Virginia, Indiana, Missouri, Montana, Florida, North Dakota with endangered Democrats whose replacement by Republicans would only increase the size of the eventual nominee’s vote total; Nevada and maybe one or two more with endangered Republicans.

Thus Sen. McConnell’s argument, whatever its own merits or lack of them,  to delay the Merrick Garland vote until after “the American people” select the next president, who has sole responsibility for selecting the judicial nominees, is much stronger than the argument of Sen. Feinstein and the Democrats to delay here.

Finally, for her argument to have even a grain of substance the votes of all those “American people” in West Virginia, Indiana, etc., must be based completely on the single issue of the next Supreme Court justice. No doubt that is how Sen. Feinstein thinks those “American people” should base their vote — and I don’t necessarily disagree — but it is far from clear that is how they will actually vote.

In short, Sen. Feinstein’s argument to wait for “the American people” to vote turns out to be as threadbare as her understanding of and sympathy for Catholic theology.


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