Feinstein's return to the Senate recalls its past heroics and persistent problems

When the Senate returns next week from its Independence Day recess, one major focus for Democrats will be their dependence on one member of their ultraslim majority.

California Democrat Dianne Feinstein took part on the Senate floor on the most recent day the chamber held recorded votes. That was June 22, which also happened to be her 90th birthday.

Feinstein is the oldest member of the current Senate, eclipsing Iowa Republican Charles Grassley by a few months. But Feinstein has been missing from the Senate for much of the current session, recovering in California from a bout with shingles complicated by encephalitis and other ailments.

During her monthslong absence she missed 91 votes, more than any other senator, and about two-thirds of all this year's Senate roll calls. Her absence also left a vacant chair on her committees – notably Judiciary, where without her vote, the Democrats could muster only a tie. That delayed the confirmation of several of President Biden's appointments to federal judgeships and executive positions for months.

When Feinstein asked in April that she be temporarily replaced on the committee, Republicans objected. That prolonged the delay until Feinstein was able to return in May.

The senator's office has announced that she will not seek reelection in 2024. Some Democrats outside the Senate have publicly called on her to resign now so that California's Democratic governor can appoint a successor and the Judiciary Committee can have a new member.

But Feinstein has refused to step down or even to discuss it, at least so far. That means that for the remainder of the 118th Congress, her ability to attend and vote will be a matter of intense concern for her party.

It also raises questions about the institution's ability to deal with its internal issues of absence due to aging or disability.

Far from new, these issues have been part of the Senate's peculiar sense of itself and the prerogatives of its members throughout the institution's history.

South Carolina's legendary Strom Thurmond served in the Senate until shortly after his 100th birthday, performing his duties as the Senate president pro tempore. Also holding that position to the end was Robert C. Byrd of West Virginia, who died in 2010 at age 92 after 51 years in the Senate (still the record).

The job of Senate president pro tempore is largely ceremonial but is an honor usually bestowed on the longest-serving member of the majority party. Right now, that would be Feinstein. But when Democrats were organizing for the current session, Feinstein declined the role.

The pro tempore gavel went to Patty Murray of Washington state. Both women were elected in November 1992, but Feinstein was sworn in sooner because she was finishing an unexpired term.

An unusual way to vote aye

Like Byrd and others in the past, Feinstein has been getting around the Capitol in a wheelchair of late. But as of this point, she has not needed any assistance in physically casting her vote.

The Senate requires members to be present and make their vote known by open declaration. Typically, that includes an audible announcement of "aye" or "nay" and sometimes also a physical thumbs up or down.

On occasion, the Senate has seen senators in a weakened condition cast their votes in rather dramatic ways.

Two of Feinstein's California predecessors have been brought to the Capitol from hospitals by ambulance and carried in on stretchers to cast crucial votes.

The first was Sen. Clair Engle, a Democrat whose vote was needed on the day in June of 1964 when the Senate broke the filibuster that had blocked what became the Civil Rights Act.

Although just 52, Engle had recently undergone surgery for a brain tumor and had been absent for weeks from the Senate. At the time, the chamber was locked in a 75-day filibuster by Southern Democrats opposed to the civil rights legislation.

When Engle was carried up the steps of the Capitol that day, no one could be certain the majority Democrats and their allies on the Republican side had the 67 votes required at that time to break a filibuster.

As the roll call began, Engle lay in the chamber with Senate Majority Leader Mike Mansfield standing at his side. When the clerk called out "Mr. Engle," the Californian, too weak to speak, slowly raised one arm and pointed to his right eye.

Cameras were not permitted in Congress in those days, but as the word went out on the wire the cheering began. Engle was back to vote for final passage of the bill later that month. He died six weeks later.

Voting under sedation

Another dramatic vote that reverberated for years was cast two decades later by California Republican Pete Wilson. In 1985, early in President Ronald Reagan's second term, Wilson suffered an acute appendicitis attack and had to have emergency surgery. While he was recovering at Bethesda Naval Hospital, a critical vote on a Reagan budget plan came before the Senate. Among other thorny issues, the plan temporarily froze increases in Social Security benefits.

Desperate for votes, Senate Majority Leader Bob Dole sent an ambulance to Bethesda to fetch Wilson. When the ailing senator's hospital gurney proved too large for the Senate elevator, he was transferred to a wheelchair and rolled into the chamber. He cast his vote in a strong voice and was wheeled back out.

At a celebration later, Dole described how he managed the scene and quipped that Wilson voted "better under sedation." Typical of Dole's mordant wit, the line was widely repeated and even used in an attack ad by Wilson's Democratic opponent when he ran for governor of California in 1990.

Wilson still won and became governor. But his Democratic opponent in that 1990 race later took over his Senate seat by defeating his appointed successor. That Democrat was Dianne Feinstein.

Institutional issues of concern

As yet, nothing about Feinstein's recent illness and absence has reached that level of drama, but given her party's current one-seat majority in the Senate a crisis of control could happen any day.

The larger issue here is not the fate of one bill or one senator but the overall viability of political institutions that depend on the unpredictable abilities of human beings.

The framers of the Constitution knew the Congress would be subject to human frailty, but they also assumed it would consist of the most capable people the fledgling country could find. Many such people served in the earliest years of the republic and in each successive generation since.

But there has never been a clear standard or guarantee of capability. Unable to ensure a level of quality, the framers also did not contemplate the existence or effects of political parties or the power and excesses of partisanship.

Nor did they provide for instances of long-term absence due to aging or illness. In an article this year in The Atlantic, the noted congressional scholar Norm Ornstein cited the egregious example of Karl Mundt, a senator from South Dakota who had a stroke in 1969 and "remained unable to work while occupying his Senate seat until his term ended in January 1973."

He also noted that in recent decades, Tim Johnson of South Dakota and Mark Kirk of Illinois "had brain injuries that kept them out of the Senate and facing surgery and rehabilitation for months" and the longtime prominent senators Ted Kennedy and John McCain were absent for protracted periods before dying of brain tumors.

The Senate can expel a member, but that requires a two-thirds vote and is all but unthinkable given the partisan impact alone. But Ornstein noted the only option is "living with a long-term vacancy or a senator truly incapable of making appropriate decisions. This is not a new problem, but it's one we need to fix, finally."

On yet another level, the Senate was never equipped to contemplate an event such as 9/11 or the COVID-19 pandemic. What would happen if the Senate could not fulfill its function because it lacked a quorum to do business?

After 9/11, the Brookings Institution and the American Enterprise Institute, where Ornstein is a resident scholar, created a "Continuity of Government Commission" to consider these questions.

The original commission recommended "temporary emergency replacements" who could serve "until the incapacitated lawmakers could sign affidavits indicating that they were ready and willing to resume their seats."

After the pandemic began, the commissioners recommended remote votes in committee and on the floor when members were unable to physically come to the Capitol. The House temporarily adopted a system for proxy voting, but it was abandoned in the 118th Congress.

"The Senate," Ornstein noted ruefully, "did nothing."

The Senate is famously fond of its traditions, and in times of narrow majorities it is driven by the imperatives of maximizing partisan leverage. The combination has so far proven strong enough to prevail over all else.

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