In 2013, President Barack Obama invited Supreme Court Justice Ruth Bader Ginsburg to lunch at the White House. The president did not directly ask Ginsburg, then 80 and already a survivor of bouts with both colon and pancreatic cancer, to resign from the court. He merely noted Democrats were unlikely to maintain control of the Senate after the 2014 elections.
Obama’s intervention was unsuccessful, and Ginsburg stayed in office. The consequences of her decision would become clear almost a decade later, when her Republican-appointed replacement provided the fifth and deciding vote to strike down Roe v. Wade’s guarantee of abortion rights.
The Democratic Party now faces an all-too-similar dilemma: A legendary woman with a crucial role in shaping the nation’s judiciary is 89 and ailing. Sen. Dianne Feinstein (D-Calif.), already set to retire in January 2025, is stricken with shingles, unable to travel to Washington, D.C., for the past two months and is unable to provide a timeline for returning to work. Without Feinstein, Democrats lack a majority on the Senate Judiciary Committee and are unable to move President Joe Biden’s judicial nominees forward ― eliminating one of the few ways to deliver liberal victories in a divided Congress.
It would seem to call for a similar presidential-level intervention. The problem? Biden himself is 80 and is often asked to fend off similar concerns about his age and acuity, making it at best an awkward conversation and potentially an impossible one.
“It is her decision to make,” White House press secretary Karine Jean-Pierre said at Wednesday’s press briefing, when asked if there was a point at which Feinstein should resign: “When it relates to anything about her future, that is for her to make. The president has been very clear about that.”
This is the logical end point of the Democrats’ ongoing gerontocracy problem: an aged president unable to intervene as an even older senator hamstrings his agenda. The gerontocracy problem, for Democrats, has long been mostly political, feeding an alienation between the younger voters who back the party in large numbers and leaders who they feel don’t understand the technology, economics and crises shaping the world today.
The political problem has been easy for Democrats to ignore. Millennials and Generation Z are the two most liberal generations in the nation’s history, and the bulk of both cohorts see Republicans offering little reason to vote for them. The urgency of defeating former President Donald Trump and of protecting abortion rights after the elimination of Roe has kept youth turnout at the levels Democrats needed in 2020 and 2022.
Feinstein’s absence turns it into a governance problem, one not so easily swept aside.
“If she can’t come back month after month after month, with this close Senate [margin], that’s not just going to hurt California. It’s going to be an issue for the country,” Sen. Amy Klobuchar (D-Minn.) said on CNN’s “State of the Union” on Sunday, without ever explicitly calling for Feinstein to resign.
So far, the Californian’s absence has not created an insurmountable backlog in the Senate, where something as simple as confirming a judge can require days of time for debate if ― and in the modern era, when ― the minority party holds up proceedings. There are four judicial nominees who have received hearings in the Judiciary Committee but not yet votes due to Republican opposition. (A number of nominees with bipartisan backing are set to move out of committee on Thursday.)
With Republicans in control of the House, the White House and Senate leadership have turned to confirming judges as the best way to advance and protect the party’s goals, especially after Trump’s own overhaul of the judiciary during his four years in office. Biden managed to confirm more judges in his first two years in office than any of the past four presidents, diversifying the federal bench in terms of identity and profession.
Democrats moved to replace Feinstein on the committee earlier this week, a process requiring 60 votes in the Senate. Republicans predictably rejected the attempt, leaving Democrats with no short-term way to fill her spot on the committee. However, Republicans indicated they would allow Democrats to replace Feinstein if she were to resign.
“It’s the temporary substitution which is the unprecedented ask,” Sen. John Cornyn (R-Texas), a GOP member of the Judiciary Committee, told HuffPost. “If she were no longer a senator, yes.”
Democrats have taken steps toward moving on from their septuagenarian and octogenarian leaders. The House leadership trio of Reps. Nancy Pelosi (Calif.), Steny Hoyer (Md.) and Jim Clyburn (S.C.) ― with a combined age of 248 ― gave way to a trio of Reps. Hakeem Jeffries (N.Y.), Katherine Clark (Mass.) and Pete Aguilar (Calif.), who have a mere sum of 154 years.
Still, there is a restlessness and worry among younger Democratic politicians eager for the party to move on, in some cases simply from Biden, in other cases from the party’s broader set of baby boomer leaders, including Senate Majority Leader Chuck Schumer (N.Y.) and even progressive Sens. Elizabeth Warren (Mass.) and Bernie Sanders (I-Vt.).
One of the few Democrats willing to say anything has been Rep. Dean Phillips, a moderate from Minnesota who has been open about his desire to move to a new generation of leaders and has called for Feinstein’s resignation.
“This isn’t about age. It’s about competency,” Phillips told HuffPost on Wednesday. “And it saddens me that we find ourselves in this position. But there’s a crisis of honesty and an unwillingness of too many of my colleagues to share.
“I’m afraid she’s being protected by people who are looking out for their own interests and not the country’s, and it saddens me,” Phillips said.
By comparison, older politicians in both parties are loud about their desire to block any attempt to create a norm of older politicians stepping down. Both Pelosi, 83, and Sen. Chuck Grassley (R-Iowa), 89, have bristled at calls for Feinstein to resign.
“I don’t know what political agendas are at work that are going after Sen. Feinstein in that way,” Pelosi told reporters on Capitol Hill. I’ve never seen them go after a man who was sick in the Senate in that way.”
“When Democrats boast about being for women’s issues and for older people, I don’t think they have a leg up on Republicans in regard to that, but we don’t brag about it as they do,” Grassley, who is just three months younger than Feinstein, told Iowa reporters on Tuesday. “And now they’re going after her because she’s 89 years old.”
Democratic operatives privately concede concerns about Biden’s age and mental quickness are a not-so-subtle driver of his low approval numbers. A Pew Research Center survey earlier this month found just 31% of Americans would describe Biden as “mentally sharp” and only 27% would call him “inspiring.” Even among Democrats, only 56% called him mentally sharp and less than half called him inspiring.
Even if Democrats can somehow convince Republicans to allow a Feinstein replacement on the Judiciary Committee, they do not exactly have a spring chicken lined up for the job: 79-year-old Sen. Ben Cardin (D-Md.) would take her spot. Cardin raised just $15,000 in the first quarter of the year, prompting speculation he could retire and make way for one of the younger politicians on Maryland’s robust Democratic bench.
Don’t count on it. “I’ll let you know when I make a decision,” he told HuffPost. “Money’s not going to be a problem for me.”