But watching Sen. Dianne Feinstein during Barrett’s confirmation hearing, you’d think it was just another week at the office.
As the Judiciary Committee’s ranking Democrat, Feinstein’s job was to lead the opposition and fight tooth and nail to stop, or at least delay, Barrett’s nomination. But the senator from California wasn’t interested in a fight. Rather than channel the anger of the people she supposedly represents, she acted as if this was normal, like the stakes of the hearing simply weren’t that high. As bad as it was for Democrats to see Feinstein barely put up a fight, it was even more demoralizing to watch her conclude the hearings by lavishing praise on Sen. Lindsey O. Graham (S.C.), the Republican chairman who had just eaten the Democrats’ lunch. She even gave him a hug.
Democrats from Rep. Katie Porter (Calif.) to Obama veteran Jon Lovett were quick to offer scathing criticism of Feinstein’s performance. “She has undercut Democrats’ position at every step of this process,” said Brian Fallon, founder of Demand Justice, a judicial advocacy group that called for Feinstein to step down from the Judiciary Committee. Progressive groups that I work with such as Justice Democrats and Sunrise Movement joined calls for Feinstein to resign, but notably so did the decidedly mainstream NARAL Pro-Choice America, saying that Feinstein had “offered an appearance of credibility to the proceedings that is wildly out of step with the American people.”
Even before the hearings, there were complaints that Feinstein’s seniority left her ill-equipped to lead Democrats in this fight. But spending decades in Washington doesn’t have to be a handicap. To understand how senior Democrats could proceed instead, look to Sen. Edward J. Markey (Mass.), who has shown how longtime Democratic lawmakers can adapt and channel the energy of the left. Not known as a progressive firebrand earlier in his career, Markey has listened to the party’s base and emerged as one of the party’s boldest leaders, particularly when it comes to climate change. After Justice Ruth Bader Ginsburg’s death, Markey was the first Senate Democrat to come out strongly for expanding the Supreme Court if Republicans filled the vacancy.
Democrats in Congress will have to decide who they want to be: Markey or Feinstein.
Let’s start with Feinstein. In four days of proceedings, she barely acknowledged the unprecedented nature of the nomination. And when she did, she sounded like someone whose chief concern was being polite and maintaining decorum. On the final day, she mused that the confirmation process was being rushed, “I guess, to show power and push someone through.” She expressed concern that the haste was breaching the “etiquette” of the Judiciary Committee. “I’m not sure etiquette is the right word,” she added, though she didn’t bother to come up with a better one.
“It’s wonderful to see you here,” Feinstein told Barrett, who should not have been there at all. During a question on the Affordable Care Act, Feinstein asked the judge to define the relatively basic legal concept of severability, and then spent a full minute taking in the answer. “Thank you,” said Feinstein. “That’s quite a definition. I’m really impressed!”
Feinstein also took the time to express her gratitude to Graham — who, in the wake of the Merrick Garland nomination, repeatedly vowed not to vote to confirm a Supreme Court justice during an election year, only to reverse course within a day of Ginsburg’s death. “This has been one of the best sets of hearings that I’ve participated in, and I want to thank you for your fairness,” Feinstein told Graham, adding, “Thank you so much for your leadership.”
In contrast, Markey has used confirmation hearings to grill Trump nominees such as current EPA Administrator Andrew Wheeler and former EPA chief Scott Pruitt with tough questions and make a forceful case for action when it comes to climate change.
Unfortunately, this week wasn’t the only time we’ve seen Feinstein put the norms and hierarchy in which she operates above the urgency of the moment. In 2019, a group of children and teenagers representing Sunrise Movement visited her office to urge her to support the Green New Deal. “You know what’s interesting about this group?” asked Feinstein. “I’ve been doing this for 30 years. I know what I’m doing. You come in here and you say it has to be my way or the highway. I don’t respond to that.” Citing her recent reelection to a seat she’d held for longer than anyone else in the room had been alive, she repeated, “I know what I’m doing.”
Here, too, the example of Markey shows that Democrats can do better. Rather than mocking the youth, he listened to them and ultimately embraced them, and became the lead Senate sponsor of the Green New Deal. Young people returned the favor, playing a pivotal role in helping Markey survive a tough and well-funded primary challenge.
From climate change to a court poised to take away our health care and our rights, most Americans are facing what looks like an increasingly bleak future. Feinstein has repeatedly demonstrated that she doesn’t get it — and she doesn’t think she has to.
If Joe Biden is elected president and Democrats win control of both houses of Congress, we’ll likely have only two years to push through the bold policies that will help undo the damage wrought by Trump and the GOP. We can’t afford to waste them. With such a brief window to actually get things done under the next president, Democrats will need congressional leaders who are determined, aggressive and genuinely invested in moving this country in a more progressive direction. In short, we’ll need leaders like Markey, not like Feinstein.