Analysis: Forget the Warren Slap-Down, Does 'Rule 19' Hold the Key to Overcoming a SCOTUS Filibuster?

Posted: Feb 08, 2017 1:15 PM

In case you missed the Senate's overnight drama, Matt's explanatory post does a nice job of filling in the blanks. Basically, after being warned over violating a Senate rule in her speech impugning the character of Jeff Sessions -- who is still a sitting member of the upper chamber -- Elizabeth Warren continued her angry harangue unabated. As she leaned on the words of Coretta Scott King in order to effectively call Sessions a racist who's sought to disenfranchise black voters, Senate Majority Leader Mitch McConnell intervened. He invoked Rule 19, which prohibits any member from taking to the floor and “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.” Warren was clearly doing precisely that. In a party-line vote, she was admonished to sit out the remainder of the debate over Sessions' nomination. A few thoughts on this, before we move on to another element of Rule 19 that may have more lasting relevance in the coming months or years:

(1) After being notified that she was on thin ice, Warren charged ahead and broke the rules. The Senate enforced its rules. Her ugly demagoguery was thus muted for a period of time.

(2) I understand that the "world's most deliberative body" ostensibly values comity and professional courtesy (though it's hard to tell these days), yet this rule strikes me as quite stupid.  It's beyond dispute that Senators have routinely attacked the motives and character of others, with a certain recently-departed Senate leader making a sport out of slandering and badmouthing political opponents. That's all permissible under the rules, you see, but similar commentaries about a fellow Senator is forbidden. The rules are what they are, but I'm not sure this is a fair one -- or at least one that ought to be invoked to interrupt and shut down a floor debate except, perhaps, in truly extreme cases. I share Republicans' contempt for Warren's poisonous race-baiting (especially coming from a disgraceful racial impostor), but I'm not persuaded that quoting other people's recycled attacks on Sessions rises to the level of triggering this procedural reprimand.  Separately, I lean toward favoring free-wheeling debate over presidential appointments in general; the selection of a Senator should not insulate that person from intense, or even unfair, criticism.

(3) The optics aren't good. Telling a woman to effectively 'sit down and shut up' as she quotes Coretta Scott King isn't a great look, regardless of the context (and I concede that the context matters here, just as I acknowledge that a great many voters will never hear it). Also, it makes Warren into a martyr, breathing life into her obnoxious heroine complex. Maybe the wiser approach would have been to forcefully dispute her premise and tactics through objections and replies. The counterargument, I suppose, is that Democrats were in the midst of a two-day character assassination festival, and some form of pointed retribution was deserved.  Nevertheless, it drew far more attention to her speech than otherwise would have occurred.  It feels like a tactical misstep. 

In any case, that kerfuffle is over.  But our scrutiny of the relevant, abstruse senate rule invoked by McConnell last night may only now be beginning.  It is looking more and more as if SCOTUS nominee Neil Gorsuch will receive an up-or-down vote after his confirmation hearings.  But if Democratic opposition calcifies, or if a filibuster is mounted against a nominee to fill a potential second vacancy, Republicans may be forced to decide whether or not to follow through on the Reid Rule and Kaine Compact to "nuke" the filibuster.  It's unclear whether McConnell would be able to marshall the requisite 51 votes to do so, even as President Trump applies external pressure to get it done.  But Sean Davis, writing at The Federalist, points to an alternative plan that would (a) avoid further undermining the filibuster, (b) guarantee extended debate over a controversial nomination, and (c) eventually lead to a final vote.  His idea derives from a separate portion of Rule 19.  I'll let him explain the basics:

Rule XIX of the Standing Rules of the Senate plainly states that on any given question, a senator may speak only twice on the same legislative day. This clause is known in Senate parlance as the two-speech rule. No senator may speak more than two times on the same matter on the same legislative day...In simple terms, it means that once each senator has spoken twice on a matter, debate on that matter is concluded no matter what. It means that a final up-or-down vote is guaranteed. It does not preclude the Senate from invoking cloture before all senators have spoken twice, nor does it preclude the Senate from proceeding to a final vote in the absence of continued debate. Unlike the nuclear option, which kills debate instantly at the whim of the majority, enforcement of the two-speech rule effectively sets a limit on debate.

But if the "two speech rule" were invoked, wouldn't the "day" clock reset every 24 hours? No.   Davis writes that the clear precedent is that a legislative day marks the period between gaveling into and out of a discrete session. On occasion, a single Senate legislative "day" has stretched on for weeks, including the famous episode in which the "two speech rule" was applied to the battle over the Civil Rights Act. Opponents of that bill, including many Democrats, were restricted to two floor addresses of unlimited duration apiece during that "day," which lasted 81 calendar days. Eventually the clock (and their stamina) ran out, and after an extraordinarily lengthy debate, votes proceeded. Davis argues that this same model can be applied to Supreme Court nomination disputes. One objection is that the country can't afford to have the Senate stuck on one topic for weeks on end. But that's a misplaced concern:

The Senate majority has the power to bounce back and forth between legislative and executive session at will. As a result, the Senate could conduct its legislative business during the day and confine debate over the pending presidential nomination to the wee hours of the night. Thus, not only would the Senate be able to dual-track its legislative and executive business, Senate Republicans would also have the power to force Senate Democrats to make their speeches in the middle of the night when nobody is watching.

Other business could be attended to during the day, while grandstanders would have to perform for the cameras very late at night. But they'd still get their say. Davis addresses additional questions from skeptics of this idea throughout the piece, and does so pretty convincingly. I suppose that one of my issues is that this does seem like an awfully complex maneuver to undertake, given that Democrats made it quite obvious that they were ready to once again hit the red nuclear button over SCOTUS picks under a Hillary presidency. If the other side telegraphs that they're going to escalate as soon as they're back in power, why not pre-empt them -- citing their own precedent -- to further your agenda?  Why unilaterally surrender, especially when they've made their intentions plain?  On the other hand, this proposal would theoretically achieve the important and laudable ends of falling short of blowing the whole thing up, permitting extraordinary extended debate in accordance with Senate tradition, and likely striking Republican members who seem reluctant to finish what Harry Reid started as more palatable. Again, I suspect that Neil Gorsuch won't attract 41 Senators willing to sustain a filibuster. But Trump's next selection, if an opening should present itself, very well could. Last night's events demonstrate that Mitch McConnell has granular knowledge of the regulations that govern the body he leads. One would imagine, therefore, that he's already taken Davis' proposed scenario into consideration. If he views the idea as a viable option, it may be smart to start laying the groundwork among his caucus in advance of its hypothetical implementation.