The passing of U.S. Senator Dianne Feinstein, a Democrat who served the people of California since 1970 in numerous roles, first at the local level, then as a Senator and Chair of powerful Committees, raises many questions about the future, including: What will Republicans, and especially Senate Minority Leader Mitch McConnell, do? Will Democrats be able to replace her on the Senate’s powerful Judiciary Committee and Rules Committee?

Senator Feinstein’s role on the Judiciary Committee for much of this year has been in the news, largely due to her ill health. Some have said the narrow Democratic majority in the Senate and on the Judiciary Committee prevented her from resigning.

There are more Republicans in the Senate (49) than Democrats (48, until Feinstein’s passing), but the three independents who generally vote with Democrats gave them a 51 vote “majority,” with the Senate President, Vice President Kamala Harris, casting the tie-breaking vote 31 times, as of July. Her 31st tie-breaking vote is matched only by one other Vice President, who also cast a total of 31 tie-breaking votes.

What happens now?

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Does President Biden’s historic pace of appointing judges – more than the last three presidents at this point in their tenure, end, at least until 2025? As of July, President Biden has nominated and had confirmed more Black women judges (13) than all other U.S. President combined, and placed on the federal bench 44 Black judges in total. Does than also grind to a halt? He has placed on the federal bench at least 27 Hispanic judges.  Earlier this year President Biden nominated two more Hispanic women judges. UC Santa Barbara’s The American Presidency Project noted, “if both are confirmed, President Biden will have confirmed more Latina circuit judges than any President in history.” It also noted, Biden “has nominated 27 AA and NHPI individuals to federal judgeships and 20 have been confirmed. This includes six AA and NHPI circuit court judges.”

And what happens if a U.S. Supreme Court Justice dies or retires?

In April, PBS NewsHour reported, “Republicans blocked a Democratic request to temporarily replace California Sen. Dianne Feinstein on the Senate Judiciary Committee Tuesday, leaving Democrats with few options for moving some of President Joe Biden’s stalled judicial nominees.”

“South Carolina Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, objected to a resolution offered by Senate Majority Leader Chuck Schumer that would have allowed another senator to take Feinstein’s place on the panel while the Democrat recuperates from a case of shingles. Republicans have argued that Democrats only want a stand-in to push through the most partisan judges, noting that many of Biden’s nominees have bipartisan support and can move to the Senate floor for a vote.”

Minority Leader McConnell also made clear his objections at the time.

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“’Let’s be clear,’ said McConnell in remarks on the Senate floor. ‘Senate Republicans will not take part in sidelining a temporarily absent colleague off a committee just so Democrats can force through their very worst nominees.'”

Given McConnell’s history, including refusing to even allow then-President Barack Obama’s nominee to the U.S. Supreme Court to get a confirmation hearing, much less an up-or-down vote, it might seem unlikely he will allow Senator Feinstein to be replaced on any Committee.

But, NewsHour’s April reporting may now give Democrats some hope.

“If Feinstein were to resign immediately, the process would be much easier for Democrats, since California Gov. Gavin Newsom would appoint a replacement. The Senate regularly approves committee assignments for new senators after their predecessors have resigned or died. But a temporary replacement due to illness is a rare, if not unprecedented, request.”

Sen. Feinstein also served on several powerful Committees, including Intelligence, Appropriations, and especially the Rules Committee.

Will Republicans allow Senator Feinstein’s replacement to serve on Judiciary, and the other Committees as well?

California’s Democratic Governor Gavin Newsom “must now appoint someone to the U.S. Senate ahead of next year’s election. He has long said he would appoint a Black woman if Feinstein did not finish her term, but he recently specified on ‘Meet the Press’ that he would do so as an ‘interim appointment,'” The San Francisco Chronicle reported Friday. “Only one of the top three candidates to replace Feinstein, Rep. Barbara Lee of Oakland, is a Black woman. Polls have shown Lee trailing two opponents, Reps. Katie Porter, D-Irvine, and Adam Schiff, D-Burbank.”

“Republicans have said they would block Democrats from replacing Feinstein on the committee, which must approve President Biden’s judicial nominees,” The Chronicle added. “Newsom has said that without her, Democrats — losing their committee majority — might not be able to get any more federal judges through Congress this term.”

“’I have to remind my friends and progressive colleagues,’ Newsom told reporters last month, ‘if she does resign and the governor, I guess me, appoints someone, we may not get another federal judge out of the Judiciary Committee.’”

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Some experts disagree with “conventional wisdom.”

“The claim that Republicans can and will block DiFi’s [Senator Feinstein’s] replacement on the Senate Judiciary Committee was pulled out of thin air by Democrats seeking a pretext to defend her refusal to retire. It is almost certainly false, and it’s irresponsible to promote this claim as a certainty,” Slate’s Mark Joseph Stern, who writes about the courts and the law, said Friday.

“Democrats confirmed nearly 100 Biden judges with an evenly divided SJC [Senate Judiciary Committee],” Stern adds. “It just takes somewhat longer.”

Politico on Friday reported, “Democrats will need 60 votes to appoint a senator to fill Feinstein’s role on the Judiciary panel, meaning at least 10 Republicans would need to vote in favor of filling Democrats’ majority on the panel, assuming they move to do so before someone is appointed to the California Senate seat.”

“Senators are typically assigned to committees by unanimous consent, but such orders are subject to debate and can be filibustered. Republican senators could slow, or stop, Democrats from filling the Judiciary roster,” Politico added. “The panel, under Democratic control, has been advancing scores of judicial nominations that Republicans object to. Leaving the panel short one Democratic vote would hamper the majority’s steady confirmation of President Joe Biden’s nominees.”

Back in June, amid clamor from some progressives for Sen. Feinstein to step down, U.S. Senator Sheldon Whitehouse (D-RI) warned, “The fact is simple: if Senator Feinstein resigns, Mitch McConnell gets to decide whether Democrats have a Senate Judiciary majority.”

Some legal and national security experts were stunned when attorneys for Donald Trump filed a near-midnight motion requesting U.S. District Judge Aileen Cannon indefinitely delay setting a date for his trial in the classified documents case.

At 11:30 PM, just 30 minutes before the deadline, Trump’s attorneys told Judge Cannon, “there is most assuredly no reason for any expedited trial, and the ends of justice are best served by a continuance.”

Technically, Trump’s legal team of four attorneys are asking Cannon to deny the U.S. Dept. of Justice’s trial schedule, and withdraw her own schedule which includes pre-trial conference dates during which attorneys and the judge discuss critical details of the case.

In their overnight filing, Trump’s attorneys suggest that the trial is political, but also, because he is running for elected office against the sitting President of the United States, he is far too busy to deal with being a defendant.

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“President Trump is running for president of the United States and is currently the likely Republican Party nominee,” the motion reads. “This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on Nov. 5, 2024.”

Pointing to Trump’s co-defendant, Walt Nauta, they add: “Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance.”

They claim it will be difficult, and time-consuming, to seat an impartial jury, especially because of the presidential election.

The attorneys write, “even Department of Justice policy cautions against taking prosecutorial action for the purpose of affecting an election or helping a candidate or party.”

Donald Trump, it has been widely reported, announced he was running for president because he thought it would prevent him from being prosecuted. And The New York Times’ Maggie Haberman, as recently as today, wrote: “Lawyers for Trump, whose advisers are blunt in private that they see winning the election is the key to making the case against him disappear, began the process of delaying the documents trial.”

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The New York Times, in that article co-authored by Haberman, adds that Trump’s “lawyers strongly hinted that they were going to fight the government during the pretrial litigation over classified material, a process that could take up significant amounts of time.”

“In general,” the lawyers’ motion reads, “the defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent.”

“Our democracy demands no less than full transparency,” they claim.

Trump’s attorneys also suggest they intend “to challenge some of the charges he is facing by arguing that the Presidential Records Act permitted Mr. Trump to take documents with him from the White House,” The Times reports. They also “suggested that they might raise ‘constitutional and statutory challenges’ to Mr. Smith’s authority as special counsel.”

In response to the news Trump is trying to delay the trial, former U.S. Attorney Joyce Vance, who is generally reserved in her commentary, overnight tweeted: “Shocker. Trump doesn’t want to ever go to trial.”

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Brad Moss, a top national security attorney, was even less reserved in his response to the news. He tweeted, “Criminal defendants in court today: Apologies, Your Honor, but I am far too busy to be prosecuted right now. I’m going to have to ask you to indefinitely postpone my trial.”

But Barb McQuade, also a former U.S. Attorney, appeared to have anticipated this move.

“To no one’s surprise, Trump’s lawyers filed a brief late last night in documents case seeking delay in trial date,” she wrote Tuesday morning. “Judge Cannon has a lot of power here to keep the trial on track. What’s the over/under for a trial before the Nov 2024 election?”

“While the arguments that Trump makes are not only anathema to the Constitution,” Adam Cohen, vice chair of Lawyers for Good Government notes, “And also contrary to his ‘lock her up’ chants in 2016…Remember-he makes this motion to Judge Cannon…Who previously decided Trump should be held to a different standard than the rest of America.”

Meanwhile, Marcy Wheeler, a national security and civil liberties journalist, suggests Trump’s attorneys are attempting to pull the wool over everyone’s eyes.

There are two parts of the Trump filing that journos REALLY ought to call out as BS. First, this line, which suggests, “Golly, DOJ had a year to investigate, why can’t I have a year to defend myself.”

They didn’t have a year. They had a stay for 3 monthshttps://t.co/ZC1Qk3N4G3 pic.twitter.com/sjMvUAfisk

— emptywheel (@emptywheel) July 11, 2023

“Trump literally got access to the docs he stole by stating, over and over, that there was no more important thing than protecting classified information. He promised voters he’d keep them safe. That’s how he won,” she reminds.

Pointing to the indictment, she adds:

Trump won in 2016 by chanting “lock her up” over and over and over. It’s right there in the indictment — he got elected promising to take care of classified information. THAT’s the exigency. pic.twitter.com/cPjOAPV1Fr

— emptywheel (@emptywheel) July 11, 2023

Wheeler, in her Twitter thread, also heavily criticized The New York Times’ reporting, and issued a warning to journalists: “You don’t have to just repeat Trump’s claims about how an election prevents him from going to trial w/o noting that he GOT ELECTED in 2016 by insisting on the urgency of criminal prosecution for mishandling classified information.”

Read the tweets above or at this link.

Image: Hunter Crenian/Shutterstock

Only on occasion do U.S. Supreme Court Justices read their opinions aloud from the bench. But on Friday Justice Sonia Sotomayor did just that, reading aloud her 38-page dissent to the majority’s 6-3 ruling in favor of a Christian anti-LGBTQ business owner, Lori Smith, who claimed Colorado’s anti-discrimination law prevented her from expanding her design business to include weddings because she refuses to provide that service to same-sex couples. The case is 303 Creative vs. Elenis.

The Court ruled that, “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”

In her dissent Justice Sotomayor exposed some of the many harms that ruling will cause, and called the “logic” in the majority opinion, written by Justice Neil Gorsuch, “embarrassing.”

“The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples,” she wrote. “She just will not sell websites for same-sex weddings. Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing.”

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Pointing to a separate legal case, she continues to mock the conservative justices, saying: “I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends.”

Her dissent also offered a great deal of support and acknowledgment of LGBTQ people and their struggles — past and current.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Justice Sotomayor wrote. Her dissent was joined by the remaining two liberals on the bench, Justices Elena Sagan and Ketanji Brown Jackson.

“The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

“In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.'”

Justice Sotomayor goes on to acknowledge that “Lesbian, gay, bisexual, and transgender (LGBT) people, no less than anyone else, deserve that dignity and freedom. The movement for LGBT rights, and the resulting expansion of state and local laws to secure gender and sexual minorities’ full and equal enjoyment of publicly available goods and services, is the latest chapter of this great American story.”

“LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law.”

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Justice Sotomayor began her dissent by reminding her fellow justices, “Five years ago, this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

“The Court also recognized the ‘serious stigma’ that would result if ‘purveyors of goods and services who object to gay marriages for moral and religious reasons’ were ‘allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ‘ ”

Adding that, “a public accommodations law ensures equal dignity in the common market,” Sotomayor’s empathy continues:

“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”

Justice Sotomayor also ensured her concerns were supported by real-life, actual examples.

Citing case law, she states:

When a young Jewish girl and her parents come across a business with a sign out front that says, “ ‘No dogs or Jews allowed,’” the fact that another business might serve her family does not redress that “stigmatizing injury,” …  Or, put another way, “the hardship Jackie Robinson suffered when on the road” with his base- ball team “was not an inability to find some hotel that would have him; it was the indignity of not being allowed to stay in the same hotel as his white teammates.”

Sotomayor continues, writing, “imagine a funeral home in rural Mississippi agrees to transport and cremate the body of an elderly man who has passed away, and to host a memorial lunch. Upon learning that the man’s surviving spouse is also a man, however, the funeral home refuses to deal with the family.”

“Grief stricken, and now isolated and humiliated, the family desperately searches for another funeral home that will take the body. They eventually find one more than 70 miles away.”

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Sotomayor also offers another example, which does not appear to be from case law.

“A professional photographer is generally free to choose her subjects. She can make a living taking photos of flowers or celebrities. The State does not regulate that choice. If the photographer opens a portrait photography business to the public, however, the business may not deny to any person, because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. That is so even though portrait photography services are customized and expressive. If the business offers school photos, it may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable. If the business offers corporate headshots, it may not deny those services to women because the owner believes a woman’s place is in the home. And if the business offers passport photos, it may not deny those services to Mexican Americans because the owner opposes immigration from Mexico,” she writes. “The same is true for sexual-orientation discrimination.”

In her conclusion, Justice Sotomayor writes, “The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the ‘promise of freedom’ is an empty one if the Government is ‘powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].'”

“Because the Court today retreats from that promise, I dissent.”