Last year, Elizabeth Warren challenged the documented history of a nominee and was silenced under an arcane rule. This year, Mitch McConnell directly challenged the integrity of opposing Senators and the rules were ignored. It helps to control the rules.
When Senator Lisa Murkowski ran for re-election in Alaska in 2010, she could not get the Republican nomination. She ended up winning as a write-in candidate, which spoke well for Alaska. It meant that, unlike the rest of us, almost 40% of Alaska’s voters had somehow learned how to spell “Murkowski.”
Although she finally came out last week against the nomination of Brett Kavanaugh for the Supreme Court, she was one of two Senators who did not vote for or against. Instead, she volunteered to participate in a very old Senate tradition involving “pairing.” When a Senator finds it a disruptive hardship to vote on an important issue, an opposing Senator who would have voted on other side will offer not to vote. It’s very friendly, when you consider that they are on opposite sides of an issue.
Senator Steve Daines was for Kavanaugh. But he really, really wanted to be back in Montana for his daughter’s wedding. So Senator Murkowski offered to pair. She would vote “present” so Daines could be “not present.” Their votes would have cancelled each other out anyway. Their non-votes will go on record, but that record will also show how they would have voted. It’s kind of an escape clause for Senator Daines. And it’s a friendly gesture by Murkowski.
It is a traditional Senate courtesy, a throwback to the days when Senators had courtesy. There was a time when institutional loyalty seemed to take precedence over partisan or ideological loyalty.
An old story has a new staff member talking about Congressional Republicans as the enemy. An old-line Democratic Congressman grabs the young man’s arm, and says “They aren’t the enemy.” The congressman points north toward the Senate Chamber. “THEY are the enemy.”
The division wasn’t always ideological, either. Liberal Ted Kennedy was seen occasionally sitting with arch-segregationist John Stennis, sharing a chuckle over some private joke. Kennedy was known for reaching across the aisle – he was close buddies with John McCain – but he was not unusual in that. Back then, reaching across was considered to be a strength.
The past wasn’t always all that friendly, to be sure. After Senator Charles Sumner spoke out vigorously against slavery, Southern Congressman Preston Brooks appeared on the Senate floor and beat Sumner with a cane until the Senator had to be hospitalized. While he lay broken and healing in a hospital bed, southern Senators joined in mocking him as a coward for his absence from the Senate floor. Nice.
A statue of Senator Benjamin Tillman still stands just outside the statehouse in Columbia, South Carolina. Tillman is known mostly for his rancid, outspoken racism. He was more than an defender of Jim Crow laws. He advocated the lynching of any black person who wanted to vote. In 1902, he got mad at his close friend, fellow South Carolina Senator John McLaurin. He accused McLaurin of corruption. McLaurin called Tillman a liar. Tillman punched McLaurin in the face. McLaurin hit back and gave Tillman a bloody nose. This all happened on the Senate floor.
Man, those were the days. A twofer: a legislative debate and hockey game combined.
That 1902 brawl became a turning point of sorts. The Senate passed Rule 19. Senators had to stop insulting each other.
One practice, in the mid-fifties, stays in my mind. Senators would include in their criticisms of each other a reference to how highly they thought of their target. “I hold my colleague in high esteem” was one common line. You couldn’t be insulting another Senator if you held that person in high esteem, right? I remember that because the late Everett Dirkson, the Republican leader from Illinois insulted another Senator just this side of Rule 19. He said that he held his colleague in “minimal high esteem.”
Rule 19 has been mostly buried in the arcane history of the Senate until early last year. We learned the language of the rule because it was read out loud to silence Elizabeth Warren:
It is a violation of Rule 19 of the standing rules of the Senate to “impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”
Senator Warren opposed confirming Senator Jefferson Beauregard Sessions as the new Attorney General. It seems Senator Sessions, before he became a Senator, had a history of hostility toward Civil Rights and anyone who works for racial equality. Ronald Reagan tried to appoint him as a US District Judge in 1986, and Coretta Scott King wrote a letter to the Senate opposing the nomination. She outlined enough specific incidents to persuade Senators to vote down the nomination.
Three decades later, Senator Warren tried to read out loud from that same letter.
Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.
Coretta Scott King, March 19, 1986
She was held in violation of Rule 19.
It was an odd ruling. She did not impute to another Senator any conduct or motive unworthy or unbecoming a Senator. For one thing, Sessions had not been a senator when the actions and words described in Mrs. King’s letter happened. For another, she was not describing that history as unworthy or unbecoming a Senator, rather as unworthy of a prospective Attorney General.
But, as Senator Mitch McConnell explained it:
She was warned. She was given an explanation. Nevertheless, she persisted.
So Elizabeth Warren was silenced for the rest of the debate, and Jeff Sessions was confirmed.
Twenty months later, Senator McConnell, who orchestrated the silencing of Senator Warren, rose to describe other members of the Senate.
Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations that are unsubstantiated and uncorroborated. That, Mr. President, is where we are. This is what the so-called resistance has become: a smear campaign pure and simple, aided and abetted by members of the United States Senate.
Wow that’s pretty strong.
There were a few specifics. They had to do with delays in sharing information. Dr. Christine Blasey Ford had initially begged for confidentiality. She requested only an FBI interview and follow-up investigation.
Democrats wouldn’t let a few inconvenient things like a complete lack of evidence or an accuser’s request for confidentiality to get between them and a good smear. It’s despicable.
Actually there were other accusers. At least one wrote to a Republican member of the committee, who then initially shared that accusation only with other Republicans. There was little controversy attached to that. It seems that checking out stories before sharing details is okay as long as the correct side does it.
Oh, but that hasn’t stopped Judiciary Committee Democrats from shoveling it into their smear campaign and demanding for further delays.
The attack continued in the same vein.
In the end, there was no attempt to silence Mitch McConnell, who was quite willing directly or indirectly, by any form of words to…
…impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.
A Senate brawl would have been entertaining television, but it was not to be.
Senator McConnell persisted, and this confirmation succeeded.
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