Opinion: 33 senators are over 70. How many might face debilitating health issues while serving?
While the Constitution allows for the vice president and a majority of the president’s cabinet to remove a president who is ‘unable to discharge the powers and duties of his office,’ there is no comparable process for removing an incompetent senator
Dianne Feinstein, D-Calif., the nation’s oldest sitting senator, died on Sept. 28, age 90. She was a trailblazing senator who served effectively for most of her career, until gradually, and then more apparently, she didn’t.
Feinstein’s slide from able senator to an incompetent one was a slow process. While the more subtle signs of Feinstein’s cognitive impairment were undoubtedly apparent years earlier to Feinstein’s family, close friends and political allies, the more overt signs were already publicly clear almost three years ago.
At that time, Feinstein, then 87 and the top Democrat on the Senate Judiciary Committee, asked Jack Dorsey whether Twitter’s labeling of President Donald Trump’s Nov. 7 tweet claiming that he had won the 2020 presidential election as “disputed” had adequately alerted readers that it was a bold-faced lie. Shockingly, after Dorsey answered, Feinstein proceeded to ask the very same question without being aware of what she was doing.
Shortly after the 2020 election, Feinstein was forced to relinquish the top Democratic spot on the Judiciary Committee but only after her inept handling of Amy Coney Barrett’s contentious Supreme Court confirmation hearing and the fear that she was not up to leading a crucial panel at the forefront of the partisan war over the courts in the new Biden administration.
Feinstein’s mental acuity had noticeably worsened since then. In early 2023, she was absent from the Senate for 21⁄2 months while recovering from complications of herpes zoster (shingles), which included left-sided facial paralysis and inflammation of her brain (encephalitis). Upon her May 2023 return, she looked very frail.
Shortly thereafter, she appeared to tell a reporter at the Capitol that she had never been gone. That statement should shock all Americans, except those who have a family member living with dementia — like me. It also happened over five months ago, yet Feinstein continued to toil as a United States senator.
Even before her recent illness, Feinstein withstood multiple rounds of calls for her resignation, as unflattering anecdotes emerged about her memory lapses and her perceived cognitive decline, as well as her visible reliance on aides in public-facing aspects of her job.
It is unfair and inherently anti-democratic that for the past three years — as is likely the case— California’s 39 million citizens’ interests increasingly have been advocated for by Feinstein’s unelected aides. Similarly, it is not in the national interest for impaired senators (or their aides) to vote on important domestic and foreign policy questions.
You might think that the U.S. Senate, as the world’s greatest deliberative body, would have speedily acted to address the issue of allowing a mentally incompetent legislator to serve. But you would be wrong. Feinstein is just the latest example of the Senate tolerating a senator whose continued “service” no longer serves the public interest.
The Senate’s recent history contains two egregious examples of senators who hung on many years beyond the time in which they served the public’s interest. Strom Thurmond, a Republican and former senator of South Carolina, was 100 when he retired in 2003. Robert Bryd, a Democrat and former senator from West Virginia, served in the Senate for a record 51 years, and died in office in 2010 at the age of 92. Both senators were widely known to be cognitively impaired by the end of their careers.
Currently, four senators are 80 years old or older, and 29 senators are 70 years old or older. Which of these senators, like Feinstein, is now serving, or in the future, will serve, in an impaired capacity?
Our nation needs an efficient process by which a mentally incompetent senator can be removed that does not affect the political balance of power. Unfortunately, currently there doesn’t appear to be one.
While Section 4 of the 25th Amendment of the Constitution allows for the vice president and a majority of the president’s cabinet to remove a president who is “unable to discharge the powers and duties of his office,” there is no comparable process for removing an incompetent senator.
The path to establishing a process has many foreseeable obstacles beyond the strong incentives for incumbent senators to fight any process that may limit their own power. Broadly, there are three potential paths forward:
- Establish a fair, transparent, independent process for establishing mental incompetency of senators. And then establish a process for expulsion of any mentally incompetent senator who does not voluntarily resign.
- Institute mandatory age limits for retirement.
- Limit senators to two six-year terms.
All paths will be difficult to implement, including those that may require amendments to the Constitution. But as our society ages, the problem of mental incompetency of its senators — and our population more generally — will only become a more frequent problem. Ignoring it now, as we’ve done in the past, isn’t a mentally competent choice.
Justin Thulin is a retired physician who practiced in Salt Lake City.