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How do you solve a problem like Dianne Feinstein? The aging senator has been MIA from her senatorial duties and the Democratic leadership has basically been twiddling their thumbs waiting for Feinstein to gracefully retire. And since Republicans have blocked a move to temporarily replace her on the Judiciary Committee, the approval of Article III judges through the Committee has functionally ground to a halt.

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So… what’s next? Appearing on Jake Tapper’s show over the weekend, Senator Dick Durbin answered questions on the matter. But the polite wait-and-see approach that the Democratic leadership has adopted didn’t sit well with Tapper. And he asked pointed questions, comparing Feinstein’s hesitance to retire from the Senate to Justice Ruth Bader Ginsburg’s reluctance to retire from the Supreme Court. The Justice famously refused to retire while a Democrat (Barack Obama) could select her replacement. Instead, she died under Donald Trump’s term in office, and was replaced by Amy Coney Barrett. For someone who dedicated her life to equal rights, well, that was… ill advised, to say the least.

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Dang. Jake Tapper to Durbin: "All due respect, sir, you and your fellow Democrats were very ginger and very polite when it came to RBG and not pushing her to retire when you had a Democrat majority in the Senate. How'd that work out for you? How'd that work out for Roe v Wade?" pic.twitter.com/fC4RdQMHbu

— Aaron Rupar (@atrupar) May 7, 2023

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But really Tapper puts none too fine a point on the matter. And the ginger approach to RBG’s retirement that Dems took has lasting ramifications for the country.

For those quantitative folks who prefer to attach hard numbers on stuff, Professor Dan Epps — along with his co-authors Adam Chilton, Kyle Rozema, and Maya Sen — have laid out all the gory details.

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Had RBG retired under a D president (or had Garland been confirmed) Democrats would likely have retaken control by 2029, and would control the Court for about half of the next century. pic.twitter.com/Id3cKyt4Ij

— Dan Epps (@danepps) May 8, 2023

So whaddya think Dems, maybe *don’t* make the same mistake? No? Okay then.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on

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Courts, Dan Epps, Diane Feinstein, Dick Durbin, Jake Tapper, Ruth Bader Ginsburg, Supreme Court