Senate Democrats are in a bind. Sen. Dianne Feinstein of California is on an extended medical absence due to a case of shingles, depriving Democrats of their majority on the Judiciary Committee. There is no way of knowing when, or even if, the octogenarian1 will return, and recent efforts to replace her plum committee seat have failed. Of course, Feinstein could resign of her own accord, and she’d swiftly be replaced by a senator able to perform his or her duties, but she’s so far refused to bow to such pressure. That effectively robs Democrats of their ability to easily advance federal judges for confirmation — which is one of the few things the party can do without control of the House.
Feinstein’s been in office for a long time, even by senatorial standards. And recent reports have detailed her colleagues’ and former staff members’ doubts regarding her cognitive function. Yet she’s not the first member of Congress to serve while facing deteriorating health. Plenty of older men have remained in their seats as they simultaneously battled debilitating illnesses like cancer, or following a stroke. The difference is that when many of such cases arose, the Senate wasn’t as narrowly divided, so it’s very likely that some of the flack Feinstein is receiving today is due to her crucial position in a Senate that’s divided 51-49 in favor of Democrats2 and on a pivotal committee where Democrats have just a one-vote edge when Feinstein is there.
What to do about a problem like Dianne Feinstein? | FiveThirtyEight Politics Podcast
The debate over what to do about Feinstein illuminates a growing problem for both parties in an era of razor-thin margins: Congress is older than it’s ever been, but there’s no process for determining whether someone is too old or too sick to serve effectively. Before Feinstein, there were debates over whether senators like Ted Kennedy and Karl Mundt and Strom Thurmond should resign, but they show just how hard it is to force a senator out. Thurmond retired at age 100, shortly before his death; Kennedy died in office; and Mundt stayed in office for more than three years after suffering a debilitating stroke that reportedly left him largely without the ability to speak or write. The problem is particularly acute for senators, who serve six-year terms and go a long time without facing voters.
“What is the job of being in Congress? It’s essentially to show up and vote. And if someone’s not doing that, there comes a time where ethically — but not legally — they owe their constituents an explanation for why,” said Jeremy Faust, an emergency physician at Brigham and Women’s Hospital at Harvard Medical School and a public health expert.
Can Tim Scott unify the GOP? | FiveThirtyEight Politics Podcast
Fact is, age-related decline is very real. And it’s especially likely to be an issue for public officials who hold powerful roles. According to a 2018 report by The Pew Charitable Trusts, the median retirement age is 62 — but a senator is far different than the median American, and the powerful usually want to remain in power. There has been a push for so-called “mental competency tests” that would measure whether an aging politician is fit to serve, but those are fraught with controversy. For instance, we don’t have an objective metric for determining when someone is unable to do their job. (As one cognitive scientist who spoke to me on the condition of anonymity said, some older people are as mentally sharp as they were in their 30s, but others, not so much.) And because different tests apply to different facets of cognition, it would be especially hard to create a minimum score a person must attain to serve in office. “I don’t think there’s any kind of magic test that will determine who is really effective and who isn’t,” said Richard Scotch, a professor of sociology, public policy and political economy at the University of Texas at Dallas.
Without an easy way to figure out whether a member of Congress is up to their job, politicians will inevitably refuse to leave positions of power even if they seem past their prime. And more and more, the consequences could have serious ramifications.
“The average person wouldn’t really care about Sen. Feinstein’s condition if she showed up and voted every day,” Faust told me. “But whether you’re the 56th vote or the 50th, you’re either fit or serve or you’re not. Somebody might get away with just sort of barely showing up when they’re the 56th vote versus the 50th, but philosophically, those numbers shouldn’t matter.”
History shows that the impact of an individual senator’s health problems does vary depending on the makeup of the chamber. When Mundt, a Republican, suffered his stroke, Democrats maintained a larger margin in the Senate, making his single vote less critical. And as for Thurmond, despite reports of his cognitive decline, he continued to show up to vote. So while both senators faced calls to resign, their health problems generally did not stand in the way of their party’s mission — unlike in Feinstein’s case.
Right now, though, Feinstein’s absence is stopping Democrats from restocking the judiciary — and that’s incredibly important today given the role that judges are playing in abortion rights, among a host of other issues. Perhaps the easiest comparison to what’s happening now is what happened to Kennedy in 2009. He missed a bunch of Senate votes as he battled brain cancer, which, in concert with other absences and the delayed seating of a Democrat due to a recount in Minnesota, complicated Democrats’ ability to wield 60 votes to overcome Republican filibusters after the 2008 election. Kennedy died in August 2009, and while a short-term appointment kept the seat in Democratic hands (and kept them at 60 seats), Republican Scott Brown went on to stunningly win a January 2010 special election, taking over the seat and pushing Democrats below the 60-vote threshold.
This contrasts with the situation around Republican Thad Cochran in 2018. That year, while serving in a narrowly divided Senate, Cochran resigned before the end of his term due to complications with his health. This led to the appointment of GOP Sen. Cindy Hyde-Smith, who remains in that seat today.
In most of these situations, it was easy to argue that the lawmakers in question were past both the age and condition at which most people retire. And that history alone might make Democrats even more eager to convince Feinstein to resign. What likely helps Feinstein, though, is that questioning someone’s competence is a fraught subject for women in particular, and that past efforts to push older people in power to retire have been broadly criticized. Take, for instance, the late Supreme Court Justice Ruth Bader Ginsburg. During her final years on the court, those who dared to speak so openly about her ailing health were labeled as sexist, gross or simply having bad manners. (Of course, these arguments did not age well when Ginsburg’s death from cancer allowed a Republican presidency and Senate to fill her seat with a conservative.)
So while Democratic leaders like Rep. Nancy Pelosi of California could be right that a male senator wouldn’t face similar calls to retire, the real problem is that the parties don’t have a way to deal with situations like this — situations that will likely become more common. At the end of the day, though, the decision of whether to step down is up to Feinstein alone, and given the context of other, older members who have refused to leave the chamber well past their prime, her long goodbye is part of a congressional tradition that could be hard to break.