Washington
CNN
 — 

Senate GOP Leader Mitch McConnell, who has been away from the Senate for over a month after falling and hitting his head at a Washington hotel, returns Monday facing a contentious question: How to handle the Democratic request to remove 89-year-old Dianne Feinstein from the Senate Judiciary Committee.

GOP sources said Sunday it was unlikely the leader would agree to this but that the issue still needed to be discussed, and a final decision had yet to be made on how to proceed.

McConnell’s decision could have major implications on President Joe Biden’s efforts to fill the judiciary and shake up the California Senate race.

That’s because if McConnell decides to deny Democrats the 60 votes needed to remove Feinstein from committee, as she has requested after being out for the past two months due to shingles, it will only intensify pressure on Feinstein to resign from the Senate. If she does, it could very well rattle the California Senate race given that Democratic Gov. Gavin Newsom has previously vowed to name a Black woman to the position — and it’s unclear if that appointed senator may also compete for Feinstein’s seat in 2024.

But if McConnell agrees to the Democratic demands, that could cause blowback from the right, something Arkansas Sen. Tom Cotton foreshadowed on Sunday.

“Republicans should not assist Democrats in confirming Joe Biden’s most radical nominees to the courts,” Cotton, one of the only Republicans to publicly weigh in so far, tweeted over the weekend.

After decades of service, Feinstein still has not returned to the Senate after announcing in early March she had shingles. Questions have since mounted about her health, when and if she will return to the US Senate, and how the Senate Judiciary Committee, which has a narrow, one-vote margin, would continue to implement the Biden administration’s judicial legacy in the wake of her absence. The importance of the lower courts has been especially highlighted by the recent fight over abortion rights.

Tensions came to a head last week when two Democratic House members – Ro Khanna of California and Dean Phillips of Minnesota – called on Feinstein to resign, an unusual breach in precedent. Hours later, Feinstein issued a public statement and requested to be pulled, albeit temporarily, from a committee where she cemented a decades-long legacy.

Feinstein serves on several other committees but is not asking to be temporarily replaced there.

A series of leadership meetings Monday evening will be critical for helping understand where Republicans are on Feinstein’s request. In conversations with GOP aides over the last several days, it’s apparent how unlikely it will be for the GOP to accept a temporary replacement for Feinstein without getting some leverage in return. But the contours of those negotiations are a moving target. Don’t underestimate the importance of McConnell’s own return in these talks. (More on that in a moment.)

Democrats will also huddle Monday evening for a leadership meeting where another major question will play out: How long can the Senate operate on the floor without Feinstein? When will pressure build for her to just resign?

Senate Majority Leader Chuck Schumer said in a statement to CNN, “I spoke with Sen. Feinstein, and she hopes to be back soon.”

Notably, Sen. Amy Klobuchar last week told CNN’s Kaitlan Collins essentially that she didn’t back calls – for now – to oust Feinstein, saying she deserved more time to recover. But the Minnesota Democrat was clear she wasn’t offering a blank check for a blanket absence.

“I want to see what happens in the next month or so,” she said.

McConnell’s legacy in the Senate is one of a tactician – a strategic operator of floor procedure and perhaps most of all: a central architect of the Republican Party’s judicial gains in this country. No one gets the importance of building the courts more than McConnell. The Kentucky senator isn’t afraid of stonewalling Supreme Court vacancies, ending the filibuster on Supreme Court nominees or meticulously ushering through a strategy that remade the judicial system under Donald Trump. In other words, don’t assume he’ll make this easy for Democrats to replace Feinstein.

It shouldn’t be forgotten, though, that McConnell has a long and respected history with Feinstein. In a speech on her upcoming retirement on the floor earlier this year, McConnell referred to her as his “good friend” and celebrated her accomplishments as well as her “genuine warmth and congeniality that cuts through even the tensest debates.” McConnell also recalled how Feinstein and her husband were close friends with McConnell and his wife, Elaine Chao, for many years.

“We had a genuine friendship, so as you can imagine, we hated to lose Dick recently, but the good news is that Dianne will be here for two more years as our colleague and that is very, very good news for Elaine and for me,” he said.

Through their service, the two forged a bipartisan relationship that transcends some of the bitter discourse that has emerged in the last decade. McConnell himself spent the last several weeks recovering after tripping and falling at an event in Washington that left him with a concussion and a fractured rib.

The idea of replacing Feinstein on Judiciary, even temporarily, has been floating around Washington as it became more and more apparent that the pace at which the Senate Judiciary committee was going to be able to move nominees slowed considerably. The trouble was there isn’t really a precedent for doing it. Typically, in the beginning of a new Congress, naming members to committees isn’t controversial. An agreement passes with unanimous consent, meaning there is no formal vote.

But if any single member objects – as could be the case here – the resolution would require 60 votes.

If any Republican objects to Schumer’s request, Democrats would need nine Republicans and every single Democrat (and independents who caucus with Democrats) to vote “yes” to approve it.

Schumer has said he will ask the Senate this week to make the change, but when he will do so is subject to tedious negotiations on the front end to see what is possible before he brings it to the floor.

The entire chapter has served as a reminder that the US Senate’s average age is 65 years old, with many members older than that. The reality is that Feinstein is not the first, and will not be the last, to have an extended absence from the body. Senators are cognizant that launching a fight today over this one absence could come back to haunt the other party in the future.

There is a reason that while Feinstein has been gone, the Senate Judiciary Committee has had to repeatedly postpone votes on judges. Without Feinstein, the committee is tied. Under the power-sharing agreement in the last Congress, which had a 50-50 Senate, there was a provision that allowed for a tied nominee to be discharged from committee and put on the floor. That rule is no longer in place, according to an aide on the committee.

So unless a judge has bipartisan support (and some of them in the pipeline still do), the nominee fails in committee and doesn’t come to the floor.