Why Dianne Feinstein shouldn’t be in line to replace Joe Biden

Senator Dianne Feinstein of California, who is the second oldest Democrat in the Senate, will turn 90 when her term ends in 2024. And according to a recent report from the San Francisco Chronicle, Feinstein is struggling with her memory. and became extremely dependent on staff.

In written statements, Feinstein pushed back against suggestions that she is unfit to serve — but the article sparked another round of concern over the lack of age limits in a Congress where the youngest member of the Democratic leadership is 71 years old. Senate Majority Leader Chuck Schumer of New York, and where 88-year-old Republican Senator Chuck Grassely of Iowa is running this year to retain his seat. In both parties, the average age of lawmakers has risen, but the cognitive decline Feinstein flagged could theoretically pose a risk to the country’s stability in January.

If the Democrats manage to keep control of the Senate, Feinstein will likely become acting president, who is technically the chairman of the body when the vice president is absent. This would put Feinstein directly in the presidential line of succession, potentially causing a constitutional crisis if the unthinkable happened during his tenure.

This would put Feinstein directly in the presidential line of succession, potentially causing a constitutional crisis if the unthinkable happened during his tenure.

The job itself is odd, the actual duties of which changed with the Senate. For most of the 18th and 19th centuries, vice presidents spent most of their time performing what was considered their primary day-to-day job: presiding over the Senate. This meant that it was only rarely necessary to choose a president pro tempore (president “for a time”).

In 1792, Congress passed the first Presidential Succession Act, which stated that if the presidency and vice-presidency were vacant due to death, resignation, or illness, the president pro tempore would be next. If no one had the position, it would be up to the Speaker of the House “to act as Speaker…until the invalidity is lifted, or a Speaker is elected.”

But by the time we hit the 20th century, things had changed. The position of acting senator was no longer an ad hoc position, but was permanently occupied by a single person as long as his party remained in the majority. Meanwhile, after years of being seen as more of a legislative branch, the role of the vice president has slowly evolved to take on more of the executive branch.

Presidential succession had also changed; in 1886, Congress swapped Congressional leaders for Cabinet officers upon succession, arguing that acting Senate President was not a known job for his executive skills. The closest a president pro tempore had come to becoming president before was during the impeachment trial of Andrew Johnson. (One likely reason Johnson was acquitted was that Liberal Senator Benjamin Wade, a Republican from Ohio, would have been the replacement.)

Due to the rise of majority leaders in the Senate, the role is now largely ceremonial, given to the party’s most senior member in the majority. Sen. Patrick Leahy, a Vermont Democrat, is currently acting president, but is retiring at the end of this year and leaving Feinstein as a possible replacement. Should the GOP manage to secure a majority in the Senate, the title would likely go to Grassley, who is, as mentioned above, the same age as Feinstein and is running for re-election this fall.

This matters because the Presidential Succession Act of 1947 put the two congressional officers back in the line of succession, ahead of Cabinet members. The change was proposed by President Harry Truman, who had himself assumed the presidency upon the death of Franklin Roosevelt.

“I felt that any man who came into the presidency should have held at least one office to which he had been elected by popular vote,” Truman would later write in his memoirs. The Speaker of the House, who just happened to be a friend of Truman at the time, would appear before the President of the Senate pro tempore in this new configuration.

Now, you might wonder why I was singling out the Acting Speaker when, in the order of succession, he falls after the Speaker of the House. After all, Speaker Nancy Pelosi, a California Democrat, is 81 herself — and her top aides are around the same age. But it’s a quirk of Pelosi’s streak of dominance as head of the House Democratic Caucus. Seniority is not a prerequisite for holding the position.

Pelosi’s predecessor, Rep. Paul Ryan, a Republican from Wisconsin, was sworn in at 45, making him the youngest speaker in more than 100 years. Pelosi’s possible replacement as president should the GOP win in November, House Minority Leader Kevin McCarthy of California, is a relatively young 57-year-old. Pelosi’s most likely Democratic successor, Rep. Hakeem Jeffries, a Democrat from New York, is 51.

The president pro tempore is the only role listed in the Constitution that practically requires its holder to be one of the most senior members of Congress under the current system. It’s a terrible system to put in place when there are already worries about the effectiveness of the system if an attack were to incapacitate or kill the president, vice president and president. And while the secretary of state would take over if the interim president is deemed unfit, that seems like the kind of power struggle you want to avoid during the level of crisis imagined by this scenario.

At present, the role is both a sinecure that has little authority and a crucial insurance against government collapse in a disaster. It’s totally untenable. Feinstein’s current health issues illustrate that either the qualifications for the position must change, or the order of presidential succession does — or both. It would be playing with the fate of our republic to leave things as they are.


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