The politics of Democratic opposition to Supreme Court nominee Samuel Alito were twofold. One, 2006 was an election year, and senators in the minority were hearing about it from their base. Two, partisanship, a vessel for the Senate filibuster, had dropped anchor inside the confirmation process. Using a procedural tool to stymie a nominee was not unusual, but rather the emerging norm.
Sen. Dianne Feinstein became plenty aware of both in a matter of weeks that January. Now the ranking member on the Senate Judiciary Committee, her name was on the ballot in California, but she wasn’t eager to run to her left despite a war-weary and energized grassroots. Ten days out from a committee vote on Alito’s nomination, she remarked—”candidly”—she didn’t see the need to prevent the judge from receiving an up-or-down vote.
“I do not see the likelihood of a filibuster, to be very candid with you. I don’t see those kinds of egregious things emerging that would justify a filibuster. I think when it comes to filibustering a Supreme Court appointment, you really have to have something out there, whether it’s gross moral turpitude or something that comes to the surface,” she said on CBS’s Face the Nation. “Now, I mean, this is a man I might disagree with. That doesn’t mean he shouldn’t be on the court.” Far from depraved, Feinstein regarded Alito as “clearly qualified” and possessing an “even demeanor.”
Then Cindy Sheehan happened. The Gold Star mother and Iraq war protester had already dogged Feinstein for her stances on the conflict, but the Alito nomination briefly opened an additional avenue to attack her. Twelve days after the Face the Nation interview, Sheehan announced she would mount a primary challenge against Feinstein if the senator did not back a filibuster. “I’m appalled that Dianne Feinstein wouldn’t recognize how dangerous Alito’s nomination is to upholding the values of our constitution and restricting the usurpation of presidential powers, for which I’ve already paid the ultimate price,” Sheehan said.
That same day, Feinstein announced she would support a filibuster, and vote against ending debate on Alito’s nomination. “Based on a very long and thoughtful analysis of the record and transcript, which I tried to indicate in my floor statement yesterday, I’ve decided that I will vote no on cloture,” she stated in a terse press release, referring to a Senate speech she gave the day before. The analysis she provided in that address did not relate to “moral turpitude”. Instead, it concerned Alito’s originalist philosophy, favorable comments he made about executive power in a previous job, and his pro-life beliefs. Feinstein might’ve disagreed with Alito—and, all of the sudden, it meant he shouldn’t be on the High Court.
The San Jose Mercury News noted that Sheehan’s warning hit the presses “about two hours after” Feinstein’s announcement. But progressive interest groups, like People for the American Way and the Alliance for Justice, were already weighing on Democratic senators to participate in the blockade. “It was very strong in terms of Californians contacting us in support of the filibuster,” Feinstein spokesman Howard Gantman told the San Francisco Chronicle at the time. The nationwide groundswell of progressivism, which scooped up protests of the war and Alito alike, was not small-time. It would at least temporarily claim Sen. Joe Lieberman, the Democratic nominee for vice president not even two years prior, who was defeated in his party’s primary by Ned Lamont that November.
Now 11 years later, the stakes and the results of Feinstein’s “moral turpitude” test are the same, but the circumstances have changed. She recently described Supreme Court nominee Judge Neil Gorsuch as “a very caring person” and someone who is “obviously very legally smart,” irrespective of their philosophical differences. He’s received similar reviews from multiple Democrats, making it less likely the left will have firm enough ground on which to hold a filibuster.
What could make it even easier for Feinstein to return to her previous standards for a Republican SCOTUS nominee: Unlike ’06, she is not up for reelection this year. Her next campaign isn’t until 2018. And there’s mounting speculation the 83 year old might retire ahead of it.
Feinstein’s stature on the committee that will oversee Gorsuch’s confirmation hearing, which was scheduled Thursday for March 20, makes her a prominent barometer of how Democrats might resist the Colorado judge’s appointment. Several seem intent on resisting President Trump, whether as retribution for Judge Merrick Garland or a blanket effort to stop the White House’s agenda. The pressure on Feinstein seems to have dropped since the Alito battle, however, teeing her up to treat Gorsuch the way she thought such nominees should have been treated all along.
