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For some months, the slow-moving tragedy of the end of California Senator Dianne Feinstein’s career has been unfolding. At age 89 she is the oldest member of the Senate, and she has been undergoing a period of clear cognitive decline which has led many to question whether she can continue to fulfil her duties representing the 40 million people of California. Feinstein recently announced she won’t run for re-election in 2024, but such is her mental state that she had to be awkwardly reminded that she had done so by an aide live on camera. More recently, Feinstein had a case of shingles which has forced her to be absent from the Senate when there is crucial business that she needs to be involved in.
There are many sensitive aspects to the topic, not least the fact that Feinstein’s husband recently died and that many male senators who have undergone mental decline and other health struggles have stayed in the Senate as long as they pleased. Nancy Pelosi has forcefully defended Feinstein against calls to resign and implied that such calls are sexist.
I agree with Pelosi - it is sexist that Feinstein is told she must resign while some male senators have enjoyed a peaceful senescence. But I don’t think the answer is that people who are not mentally competent should be allowed to remain in key positions whatever their gender. The answer is that they should all leave, because the smooth functioning of the American political system depends on it.
Veto points
The American political system is notable compared to other democratic systems because it contains a high number of what political scientists call “veto points” - places in the system at which action by the government can be stopped. Take legislation as an example. In order for a law to go into effect in America, it needs to be approved by congressional committees, the House, the Senate, and the president. Then the law can only continue to operate for as long as the court system allows it. A single rogue judge can overturn a piece of legislation or a regulation at any time, as we saw recently when a U.S. district judge cut off the nationwide supply of a key abortion drug by invalidating a 20-year old regulatory decision to approve it for distribution.
Sometimes even a lone senator can put a spanner in the works. For a long time Ted Cruz single-handedly prevented the Biden administration from getting key ambassadors in place around the world through forcing a time-consuming individual vote on each one. Because Senate floor time is extremely limited, many of these votes either never happened or were delayed for way too long, leaving the U.S. government without effective representation abroad.
Cruz’s actions highlight another important fact, which is that as American politics has entered a spiral of polarization and acrimony, veto points have become more dangerous. Cruz says he held up the ambassadorial appointments because he disagreed with a specific foreign policy decision the Biden administration made, but it’s generally understood he just did it because he thinks it’s good politics. There’s a long tradition of using veto points and institutional power to screw the other side and score petty political points, but recently the tendency is becoming more common and destructive. And that makes it even harder to get anything constructive done.
Which brings me back to Dianne Feinstein.
The Feinstein problem
If Dianne Feinstein was “just” the senior senator from California, there might be less of a problem. She’s going to retire in 2024, and she’s had a long and distinguished career, including authoring the assault weapons ban in 1994. There might be a case to be made for letting her serve out her final years as she sees fit.
But the problem is that Dianne Feinstein is not “just” the senior senator from California. She personally occupies at least two key veto points in the Senate. The first is that she’s a member of the Judiciary Committee, and Democrats need her vote to confirm judges. Because the filibuster has been eliminated on judicial appointments, putting new judges into the judicial branch is one of the few things that Democrats can accomplish in a tightly divided Senate. It’s also a crucial one given the huge impact that judges can have on American politics and law - something that wasn’t lost on the Trump administration, which went pell-mell to seed the judiciary with ideologically extreme individuals. Democrats can’t get their own judges on the bench without Feinstein’s vote because they can’t get their nominees out of the Judiciary Committee while she’s incapacitated.
The second veto point that Feinstein occupies is just that she’s a regular senator in a closely-divided chamber. Democrats control the chamber 51 - 49, but if you subtract Feinstein then they only control it 50-49. There are some crucial votes coming up this year which are going to be tough enough to get through the Senate anyway given the antics of Joe Manchin and Kyrsten Sinema, and they become a lot harder without Feinstein’s vote. When you consider that Pennsylvania John Fetterman is also experiencing some serious health issues and may be absent again, the situation appears even more serious.
The basic problem here is that in a highly partisan, closely divided political system, veto points become more important than ever. In a world in which Democrats controlled the chamber 55-45 and there wasn’t a filibuster, then one senator being incapacitated would be less of a big deal. But we live in the world that we live in, and in this world Republicans are refusing to allow Democrats to replace Feinstein on the Judiciary Committee because they know that for so long as she’s there and unable to vote, Democrats can’t confirm liberal judges.
What can be done?
On one level, the solution is for Dianne Feinstein to resign. If she did that, California Governor Gavin Newsom could appoint a new senator to serve until the next election, and Democrats could put someone else on the Judiciary Committee. On a broader level, though, expecting senators to resign in the interest of the party and the country is not really a good solution. Older people who are experiencing severe health problems may not be in their right mind and are, like everyone else, driven by self-interest and self-image. You can’t count on them to see the forest for the trees.
But there are a number of policy and institutional changes which could help cope with the problem caused by the collision of greying leaders with the American political system’s veto points. The first is to consider some kind of term or age limits, particularly in the Supreme Court. Right now, when a justice dies, whoever happens to control the presidency and the Senate at the time gets to choose their replacement. This means that the ideological direction of the court and the entire nation rests on when one of a group of old people randomly passes away. Again, appealing to the wider interests doesn’t typically work here, as we saw when Ruth Bader Ginsburg refused to resign while Obama was president, eventually allowing Trump to appoint her successor.
Setting age or term limits on Supreme Court appointments wouldn’t just solve the problem of someone potentially serving on the court while undergoing severe decline - it would also be a shot in the arm for American democracy. At the moment the Supreme Court features in American elections in a vague sense - there’s always a chance that whoever you are picking as president might make appointments to the highest bench, but you typically don’t know it for sure. But imagine that the nation could go to the polling booths in 2024 knowing that two justices would be stepping down in the period 2025 - 28. Imagine for that matter that the country had known in 2016 that Donald Trump would make three appointments to the Supreme Court. The stakes would be clearer, and people could vote accordingly.
In Congress, terms limits are a little more tricky. It’s true that politicians gain experience, connections, and wisdom as they age. I’ve never been in favor of suggestions, often by populists who are skeptical of career politicians, that Congress have absurdly short term limits of two or four or six years. Age limits are tricky too, because forcing someone into retirement can radically change the ideological composition of the Senate. Joe Manchin is 75 and for however much they complain about him, it is generally in the interest of Democrats to keep him around for as long as possible because West Virginia is overwhelmingly likely to be send a Republican to replace him when he’s gone. Just on a practical level, it would be very difficult to get Congress to agree to rules stopping members from sticking around as long as they wish.
And I also don’t think that term limits are a good idea on the merits. The first reason is that they could heighten the partisan performativity that we already see in Congress. If you have a bunch of people who know they’re only going to be a senator or a congressperson for a few years, they have every incentive to burn the institution to the ground if only they can make a useful stepping stone to the next job. Term limits would also paradoxically undermine democracy because they undermine the competence and power of the peoples’ representatives vis-a-vis other permanent members of the political class. If legislators have to rely on lobbyists or interest groups to show them the legislative ropes and talk them through the issues, that’s going to lead to more damaging outcomes.
But surely there is a middle ground. Age limits, at least on committee assignments or committee leadership positions, would be superior to term limits. Even term limits just on committee leadership positions - something that Republicans already enforce in their caucus - would be a way of preventing a senator in severely declining health from holding on until they keel over. Even just creating a new mechanism for subbing in new candidates on committees would allow both sides to deal with emergency situations.
The broader issue here is that the American political class is currently really old, and this is preventing the emergence of a new set of leaders. An age limit for senators or Supreme Court justices of 80 or 75 or even 70 doesn’t seem egregious and would provide some healthy churn that would allow new leaders to emerge. In a fast-moving world and an already cumbersome political system, that’s worth the loss of a little seniority and experience.