Republicans could filibuster the replacement of Dianne Feinstein, but it's unclear if they actually would: 'We couldn't do that'

• Some Democrats have argued that it's politically unwise to call for Dianne Feinstein to resign.
• They argue that Republicans could filibuster the appointment of a new senator to the Judiciary Committee.

As questions continue to swirl around Sen. Dianne Feinstein's ability to continue serving in the Senate, prominent Democrats have increasingly argued that calls for her resignation are politically unwise.

They argue that Republicans would seize a key opportunity to slow down President Joe Biden's agenda and block the appointment of a new Democratic senator to fill Feinstein's seat on the important Senate Judiciary Committee. That would significantly slow down the approval of Biden judicial nominees that lack GOP support.

Yet it remains unclear if Republicans would be willing to take such an unprecedented step — and in recent interviews with Insider, some seemed to believe it wouldn't even be possible.

"We couldn't do that," said Republican Sen. Chuck Grassley of Iowa, who chaired the committee from 2015 to 2019. "Once they're seated, we would accept it — as long as it isn't done for political purposes."

"I don't know why that would be a problem," said Republican Sen. Josh Hawley of Missouri, another member of the committee. "Because they have a majority, they're entitled to a one-seat vote majority on that committee, so it's unclear to me how we could prevent them from having that."

In fact, Republicans could prevent it — in exactly the same way that they prevented Democrats from passing a resolution to temporarily give Feinstein's seat to Democratic Sen. Ben Cardin of Maryland in April, amid the California Democrat's lengthy absence from the chamber.

At the time, Republican senators almost unanimously refused to support the switch, with some arguing that it was disrespectful to Feinstein, or that they would have no part in helping to fast-track Biden's judicial nominees. With Feinstein absent, the Judiciary Committee could not quickly approve and send to the floor a slate of nominees that lacked GOP support.

Because of the Senate's 60-vote filibuster rule, at least 10 Republicans had to join with the 50 remaining Democrats to consider a resolution to make the switch.

When GOP opposition became clear, Senate Majority Leader Chuck Schumer instead sought to make the change via a voice vote — a largely symbolic move that allowed Republican Sen. Lindsey Graham of South Carolina to rise and object.

But even Graham — the top Republican on the Judiciary Committee — later said on CNN that he "would be in the camp of following the precedent of the Senate, replacing the person, consistent with what we have done in the past," if Feinstein actually resigned.

Nonetheless, the Republican blockage increased pressure on Feinstein to return to Washington, even as she continued to recover from the complications of a shingles infection.

In May, she did just that — ending the logjam of judicial nominees, for now.

'Mitch McConnell gets to decide'

On some level, the question is moot: Feinstein has continued to insist that she will not be resigning and will finish out her term, which ends in January 2025.

But the arguments made by Democrats highlight the lack of trust they feel towards the other party, particularly given recent history.

Most infamously, then-Senate Majority Leader Mitch McConnell blocked the appointment of a new Supreme Court justice during the last year of President Barack Obama's presidency — only to speedily confirm Justice Amy Coney Barrett during the final months of President Donald Trump's term.

"The fact is simple: if Senator Feinstein resigns, Mitch McConnell gets to decide whether Democrats have a Senate Judiciary majority," wrote Democratic Sen. Sheldon Whitehouse of Rhode Island in a recent tweet.

And Feinstein's long-time colleague, former Democratic Sen. Barbara Boxer of California — who once suggested that Feinstein might want to consider resigning — recently argued that progressives should back off from calls for her resignation, saying Republicans "showed their hand" by preventing the Cardin replacement.

Schumer told the New York Times that "it's logical they would pull out all the stops" while acknowledging that "they might not stop it."

And at least one Republican is pointedly refusing to commit to allowing Democrats to fill a hypothetical-empty seat on the Judiciary Committee: Sen. Ted Cruz of Texas.

"It's not worth engaging in hypotheticals," Cruz, a member of the committee, told Insider at the Capitol earlier this month. When pressed on why he wouldn't engage, he said that Feinstein "has made clear she's not going anywhere. I take her at her word."

McConnell has also declined to weigh in on the question of what he would do if Feinstein resigned, including when asked recently by the Times. Ultimately, he would have a high degree of influence over how Republican senators treat the issue.

But what's clear from interviews with Republican senators is that many have not contemplated the matter deeply — signaling the lack of any behind-the-scenes discussion on the matter, but also the possibility that the caucus could swiftly coalesce around whatever position McConnell took if this situation came to pass.

Asked for his opinion, Republican Sen. Rick Scott of Florida appeared wholly unaware that his party had recently blocked Democrats from replacing Feinstein with Cardin, saying he "didn't remember" taking a floor vote on the matter.

When reminded that Graham rose to block the unanimous consent request in April, Scott then asked why Schumer didn't simply hold a roll call vote, pointing to the fact that Democrats hold a majority.

He then expressed amazement at the fact that Republican support would be needed at all to make the change, musing that "you learn something new every day."

"It really takes 60 votes?" Scott later asked. "Doesn't that surprise you?"