Without Senator Dianne Feinstein, nominees for federal judgeships in California must wait

A fully-functional Senate Judiciary Committee could speed up the process to fill federal judge vacancies in California. But right now, that committee is not fully functional, and it’s unclear what will happen to the nominees.

In late January, President Joe Biden, a Democrat, nominated Mónica Ramírez Almadani and Wesley Liu Hsu to fill gaps on the U.S. District Court for the Central District of California and Marian FitzGerald Gaston for the Southern District.

None of them, however, have been considered by the Senate. Why? Because California Sen. Dianne Feinstein’s prolonged absence has forced the Senate Judiciary Committee to effectively pause confirming the president’s picks.

The committee vets the president’s choices for nominations before allowing the full Senate to vote on confirmation. To reach the Senate floor, a nominee must majority support of the 21-person committee.

Without Feinstein, the committee is split evenly among Democrats and Republicans. Sen. Dick Durbin, D-Ill., the Senate Judiciary Committee Chairman, told CNN, “I can’t consider nominees in these circumstances because a tie vote is a losing vote in committee.”

The committee, which oversees judicial and executive nominations, has not approved anyone since mid-March and have held hearings for few nominees. The Senate confirmed 11 judicial nominees in March.

A spokesman for Feinstein said he did not have a comment about the nominees’ status.

Feinstein offered to step down but Republicans won’t replace her

Feinstein, 89, has not been back to the U.S. Senate since being diagnosed with shingles in late February. In early March, her office revealed she was hospitalized. The California Democrat’s delayed arrival, coupled with questions about her mental fitness and age, has led some of her congressional colleagues to call for her resignation.

Under pressure, Feinstein offered to temporarily step off of the Judiciary Committee last week. Feinstein, who has been in the Senate since 1992, will retire after her term expires in 2025.

Senate Majority Leader Chuck Schumer said Tuesday he would try to have Sen. Ben Cardin, D-Md., fill Feinstein’s seat. Cardin, a veteran lawmaker, is regarded as liberal but not far left.

But the full Senate needs 60 votes to replace her. In a slim majority, presently with Democrats controlling 50 seats and 49 Republicans, the vote must be bipartisan.

Senate Republican Leader Mitch McConnell, R-Ky., made it clear neither he nor other Senate Republicans wanted to help Democrats fill the seat. He said that Democrats are making good progress in confirming judges and need no further help.

“The far left wants the full Senate to move a senator off a committee so they can ram through a small sliver of their nominees who are especially extreme or unqualified,” McConnell said, saying four nominees who he did not name were unqualified.

“So, even though they could move a number of less controversial nominees right now,” h said. “they want to sideline Senator Feinstein so they can ram through the worst four as well.”

Sen. Chuck Grassley, R-Iowa, the top Judiciary Committee Republican, said he would not go along with the Democratic plan, “not the way they’re doing business unless they want to change all the committees and do it on a permanent basis.”

Biden’s nominees to be judges in California

Of the California nominees waiting to be heard by the Judiciary Committee, Ramírez Almadani is the CEO of Public Counsel, the nation’s largest pro bono law firm. Hsu and Gaston are judges on the Los Angeles County Superior Court and San Diego County Superior Court respectively.

Five nominees who could impact California’s judicial process have passed the Judiciary Committee but not been confirmed by the full Senate: P. Casey Pitts and Rita F. Lin for the Northern District, Kenly Kiya Kato and Hernán D. Vera for the Central District, and Anthony Devos Johnstone of Montana, who could fill a vacancy on the Ninth Circuit.

On Monday, Biden nominated Ana de Alba, a federal judge for the Eastern District of California, which includes Sacramento, Modesto and Fresno, to serve on the Ninth Circuit Appeals Court. Regardless of Feinstein’s absence, it would take a while to get to her nomination.

Biden has put 119 judges, including Supreme Court Justice Ketanji Brown Jackson, on the federal bench.

Not having Feinstein in the Senate in general could make it more difficult to confirm nominees who need more Democrats to get enough support.

Feinstein is not the only senator who has had to take time away recently.

McConnell and Sen. John Fetterman, D-Penn., returned Monday following weeks long medical issues. McConnell, 81, broke a rib and had a concussion from a fall at a Washington hotel on March 8. Fetterman, 53, sought inpatient treatment for clinical depression at Water Reed Army Medical Center in February; he was released in late March.

Schumer said he expects Feinstein to return to the Senate. They spoke Friday, and he said Tuesday, “She and I are hopeful she will return very soon.”