Censure Dianne Feinstein

By Michael W. Schwartz

Friday, September 21, 2018

Regardless of the fate of Brett Kavanaugh’s nomination, the Senate should censure the ranking Democratic member of the Judiciary Committee, Dianne Feinstein. Her deception and maneuvering, condemned across the political spectrum, seriously interfered with the Senate’s performance of its constitutional duty to review judicial nominations, and unquestionably has brought the Senate into “dishonor and disrepute,” the standard that governs these matters. As a matter of institutional integrity, the Senate cannot let this wrong go unaddressed.

Article I, Section 5 of the Constitution provides that each House of the Congress may “punish its Members for disorderly Behaviour.” Nine times in American history the Senate has used that power to censure one of its members. Feinstein has richly earned the right to join this inglorious company.

The senior senator from California not only disgraced herself personally in the underhanded and disingenuous way she dealt with the sex-assault charge against Judge Kavanaugh, but she also misused her position on the Judiciary Committee and broke faith with her fellow committee members. She was further, to quote the San Francisco Chronicle, no less, “unfair” to Judge Kavanaugh — manipulating the public disclosure of the charge so as to maximize the adverse publicity Judge Kavanaugh received and minimize the judge’s opportunity to defend himself. Censure is appropriate in this case for the Senate to defend its procedures and institutional reputation.

By her own account, Feinstein was aware of the charge shortly after President Trump nominated Kavanaugh, nearly two months before her committee opened its hearings. She came into possession of the letter making the charge by virtue of her position on the Judiciary Committee. We don’t know what contact she had thereafter with the accuser or the accuser’s Democrat-activist Washington lawyer — but we do know that Feinstein kept the information from her Senate colleagues, ensuring it was untested and unmentioned in the committee’s hearings. This, even though the hearings were accompanied by loud complaints from Democrats that the administration’s document production was insufficient. Indeed, as this is being written, while yet another Judiciary Committee hearing has been scheduled, she still has not released the unredacted text of the letter that made the charge.

Her conduct has been condemned all across the political spectrum. Her hometown newspaper, the left-leaning Chronicle, editorialized that she chose “the worst possible course” in dealing with the charge. The Chronicle specifically noted that her treatment of the more than three-decade-old assault charge was “unfair to Feinstein’s colleagues — Democrats and Republicans alike — on the Senate Judiciary Committee.” Across the political aisle, her conduct was called “totally dishonest and dirty” in the pages of the Washington Examiner; the Wall Street Journal, more restrained, described her conduct as “highly irregular.”

In substance, she “deliberately misled and deceived” her fellow senators, with the “effect of impeding discovery of evidence” relevant to the performance of their constitutional duties. No one should know better than Feinstein herself that such deceptive and obstructive conduct, widely regarded as “unacceptable,” “fully deserves censure,” so that “future generations of Americans . . . know that such behavior is not only unacceptable but also bears grave consequences,” bringing “shame and dishonor” to the person guilty of it and to the office that person holds, who has “violated the trust of the American people.” These quoted words all come from the resolution of censure Feinstein herself introduced concerning President Bill Clinton’s behavior in connection with his sex scandal. She can hardly be heard to complain if she is held to the same standard.

Comparison with other past censure cases only makes Feinstein’s situation look worse. The last three senators censured, Thomas Dodd, Herman Talmadge, and Dave Durenberger, were all condemned for financial hanky-panky: converting campaign contributions to personal use and the like. They were all found to have brought the Senate into “dishonor and disrepute” even though nothing they had done implicated the Senate’s performance of its constitutional duties. Feinstein, in sharpest contrast, sought to keep her committee from timely and properly investigating an apparently serious charge of misconduct, and is still doing so, even in the face of criticism from all (or most) quarters.

As the second-richest member of the Senate, with a net worth of $94 million, Feinstein is presumably above the temptations to which Dodd, Talmadge, and Durenberger succumbed. She does, however, face a difficult reelection campaign, with a serious enthusiasm gap on her left, the California Democratic party having refused to endorse her bid for a sixth term in office. Her conduct in arranging matters to make her appear the champion of an allegedly abused constituent, and perhaps positioning herself as the woman who sank the Kavanaugh nomination, can only help on that flank. Is a nakedly political motive for senatorial misbehavior any less reprehensible than a financial one?

How does she stack up against the most famously censured senator, Joe McCarthy? While what people remember is McCarthy’s trafficking in smears and innuendoes — immortalized in Joseph Welch’s “have you no sense of decency” reproach — McCarthy was actually condemned for “non-cooperation with and abuse of” one Senate subcommittee and abuse of another. The words of McCarthy’s condemnation — that his conduct “tended . . . to obstruct the constitutional processes of the Senate, and to impair its dignity” — fit Feinstein’s conduct as the ranking member of the Judiciary Committee like a glove.

And if trafficking in smears and innuendoes is relevant, consider what Feinstein did: Not only did she fail in her committee duties, but she did everything she could to make the charge public in a way that made the target’s defense difficult or impossible. The charge was lodged anonymously, and rather than subjecting it to vetting by her fellow senators, Feinstein made a transparently groundless referral of the matter to the FBI — as if there could conceivably be a federal law-enforcement dimension to the decades-old claim of sexual assault — which the FBI, to its credit, unceremoniously filed away. Left hanging in the glare of a still-untested sexual-assault charge — which today has the same resonance that a charge of Communist sympathies had in McCarthy’s day — are Judge Kavanaugh, his wife, and his two daughters. They are in a far worse position than was the young lawyer in whose defense Welch made his famous statement.

It bears noting that, in August of this year, only 17 percent of the American public approved of the way Congress was doing its job, down from a not-very-lofty 20 percent a year earlier. If the Senate gives Feinstein a pass for her irresponsible and self-serving abuse of the chamber’s processes, that number will deservedly fall still further.

Where does all this leave the Kavanaugh nomination? Barring the emergence of evidence unequivocally confirming the charge, senators who are on the fence might want to consider that a vote against the nominee now necessarily excuses and even legitimates Feinstein’s misconduct. If the senators don’t take their own institution’s procedures seriously, and refuse to stand against so blatant a breach, it’s hard to expect the rest of us to do so.