#Let Liz Speak — Why U.S. Senate Rule 19 Should Not Apply to Nominees for Executive Office

Attorney General nominee (and US Senator) Jeff Sessions — photo by Molly Riley

On February 7, 2017, Senate Majority Leader Mitch McConnell effectively silenced Senator Elizabeth Warren during live debate in the Senate chamber while she critiqued the nomination of Senator Jeff Sessions for the job of Attorney General of the United States. For authority to gag Ms. Warren, Mr. McConnell invoked Senate Rule XIX, subsection 2, which reads:

No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

Stifled on the floor of the Senate, Ms. Warren quickly turned to Facebook to continue her presentation on aspects of Mr. Sessions that might be “unworthy or unbecoming” of a nominee for the office of the US Attorney General. This Facebook presentation attracted over 2 million viewers, more than she was going to get on CSPAN. Mr. McConnell shut her down after she had quoted the words of civil rights leader Coretta Scott King, the deceased widow of Martin Luther King, Jr.

There is considerable doubt that Senate Rule XIX, subsection 2 is particularly relevant in cases where the allegedly improper words spoken are directed not to a Senator in his or her capacity as a Senator, but are instead directed towards the conduct or motive of a nominee for executive office. The rule was created to preserve good relations between persons who would continue to be in close contact with one another as Senators for an indefinitely long period of time. Everyone in the Senate knows that Jeff Sessions has decided to resign from the Senate in order to win a job that the Senate once denied to him. As one who has abandoned his commitment to the Senate, he should not be treated under Rule 19 as the kind of Senator that needs protection from hard words.

The Senate is under a Constitutional obligation to deal with nominees as a separate class of persons from fellow Senators. Mr. Sessions already enjoys the overwhelming advantage of being an insider and enjoying the affection and respect of many of his colleagues in that body. Of all possible nominees subject to confirmation by the Senate under the rules and procedures of the US Constitution, US Senators should be the very last nominees to be afforded the benefits gained by gagging free speech by fellow Senators who are attempting to uphold their duty under the US Constitution to conduct inquiries into the merits and qualifications of all nominees for executive office. This is especially true when the benefit to be gained from such suppression of speech is the removal of an important consideration from discussion (e.g., the question of his commitment to fair and equal enforcement of all of the nation’s civil rights laws).

I would like to say, “How the Rule 19 vote passed, I will never know.” But the sad truth is that Mr. McConnell and the Senate Republicans became so habitually obstructionist (during Obama’s 2,900+ days asking Congress for something, anything by way of Obama’s legislative agenda to get passed) that they’ve become almost instinctively entrenched in a highly disruptive and aggressive posture of partisan rancor that has done, and will continue to do, much greater damage to the sanctity and reputation of Congress than any words from Ms. Warren’s mouth could ever hope to do. Open and honest discussion and debate has been and continues to be the most important and precious key to mutual understanding and productive compromise between different factions and interests in the highest forums of representative democracy under a written Constitution.The silencing of a strong, democratically-elected voice from a proud and sovereign state of this awesome Union of many proud sovereign states, this unnecessary weakening of a vital Constitutional function of Congress (i.e., confirming Presidential nominees) is an unfathomably grim development. It is not hard to imagine that the patrimony of authoritarian Republicanism was so incensed by the betrayal of female Senators Murkowski and Collins on the Betsy DeVos party-line confirmation vote, that their knee-jerk reaction was to take out their testosterone-fueled frustrations on that willful and passionate Democratic female Senator from Massachusetts who dared to quote the words of Dr. Martin Luther King’s daughter on the floor of the US Senate in a debate over whether nominee (not Senator) Jeff Sessions is up to the task of suppressing racism, violence, and other terrible wrongs through proper and thorough enforcement of the nation’s civil rights laws.