Thou Shalt Not Impugn a Fellow Senator

Coretta Scott King’s letter blasting the attorney-general nominee was fair game 30 years ago but got Elizabeth Warren censured Tuesday. The big difference is that now Sessions is a member of the club.

Aaron Bernstein / Reuters

One of the most striking aspects of Tuesday night’s dramatic encounter between Senate Majority Leader Mitch McConnell and Democratic Senator Elizabeth Warren was how little real drama there was.

The Republican leader forced Warren to sit down for impugning Senator Jeff Sessions, President Donald Trump’s nominee for attorney general. Despite the huge uproar the incident created in social media, it was handled as calmly and procedurally as everything else in the Senate—and in keeping with the aesthetic favored by McConnell, who carefully maintains a dry demeanor even when wielding chamber rules like a scimitar. There was nary a raised voice—just a somewhat tense, drab exchange of parliamentary conventions, and then Warren sat.

The Senate is many things, but one of them is a classic old-style club, in which it doesn’t matter how disreputable one believes a fellow member is; the important thing is to maintain decorum and formalized respect.

The strangeness of Senate rules provides the broader backdrop for the entire fight over Sessions’s nomination. The Alabaman is all but certain to be confirmed, despite the objections of most Democrats, as well as many civil-rights groups, but when Sessions last came up for Senate confirmation, in 1986, he was soundly rejected for a federal judgeship—thanks in part to the very words that got Warren silenced Tuesday night. There are plenty of differences between the two nominations, but few are so salient as the fact that the Senate’s rules now protect Sessions, as a senator, from the same slights that sank him years ago.

“I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate,” Warren complained Tuesday. Her phrasing was imprecise: It wasn’t that the words were unsuitable per se. Warren, a Massachusetts Democrat, was reading from a letter that the widow of Martin Luther King Jr. wrote at the time of Sessions’s nomination, opposing it. King laid out a devastating broadside, over the course of 10 pages, arguing he was unfit for the bench, and that his confirmation would undo her husband’s work. Coretta Scott King concluded:

I do not believe Jefferson Sessions possesses the requisite judgment, competence, and sensitivity to the rights guaranteed by the federal civil rights laws to qualify for appointment to the federal district court. Based on his record, I believe his confirmation would have a devastating effect on not only the judicial system in Alabama, but also on the progress we have made everywhere toward fulfilling my husband's dream that he envisioned over twenty years ago. I therefore urge the Senate Judiciary Committee to deny his confirmation.

Senator Strom Thurmond, the infamous former segregationist from South Carolina who chaired the Judiciary Committee did not enter the letter into the congressional record, meaning it was for a time lost, until The Washington Post’s Wesley Lowery resurfaced it earlier this year.

The letter was a central part of the successful effort to defeat Sessions’s nomination. The Judiciary Committee voted against recommending his nomination to the broader Senate, then deadlocked on whether to send the nomination on without a recommendation, effectively killing it. One pivotal vote was Alabama Senator Howell Heflin, a Democrat, who began as a Sessions supporter but changed his mind over the course of the testimony. Sessions’s nomination was withdrawn, even though Republicans, the party of President Reagan, held a majority that was one seat larger than the GOP’s edge today.

Warren read from the same letter from King on Tuesday, as well as another from the late Senator Edward Kennedy, who had called Sessions a “disgrace to the Justice Department,” when she was ruled to have breached decorum. McConnell charged that Warren had “impugned the motives and conduct of our colleague from Alabama.” Put differently, the very words that helped to mortally wound Sessions’s nomination 30 years ago, when he was merely a United States attorney had become anathema when Sessions joined the Senate in 1997—replacing Heflin, the man who had voted against him.

Like many ancient customs, the rule enforced against Warren was born out of a genuine concern: The prohibition against impugning a colleague was installed after Senator John McLaurin and Ben Tillman of South Carolina got into a fistfight on the floor in 1902. But like many century-old rules, this one produces peculiar results when applied today, such as the notion that King’s words, acceptable in 1986, are not acceptable now that Sessions is a member of the club.

This is one reason presidents like to name members of the Senate to Cabinet posts and other jobs that require Senate confirmation: They know that members are loath to vote against members of their own club, since it threatens their treasured decorum. The last current or former senator to be rejected for confirmation was John Tower, a Texan whom George H.W. Bush nominated for secretary of defense in 1989. Tower was said to be a heavy drinker and a womanizer. The New York Times starchily noted at the time, “After weeks of fierce debate, personal lobbying by the President and allegations of private misconduct by Mr. Tower that would never have been aired in an earlier age, the end came in a calm, ceremonial proceeding with all 100 senators gathered in the chamber.” Of course it was calm and ceremonial—it was, after all, still the Senate.

Even with Sessions headed toward likely confirmation, his nomination has posed a sharp challenge to the rules of decorum. The Warren-McConnell contretemps is not the first incident. Senator Cory Booker, a New Jersey Democrat, testified against Sessions’s nomination, the first time a member had testified against another member’s appointment.

The willingness of senators to flout these norms does not arise in isolation. They fit with, for example, Senator Rand Paul’s highly unusual filibuster of John Brennan’s nomination to be President Obama’s CIA director, or Senator Ted Cruz’s “fauxlibuster,” in which he spoke for hours in 2013, even though the speech had no role in actually preventing funding for the Affordable Care Act, his ostensible aim. That stunt earned Cruz, not for the first time, the disdain of some of his colleagues.

A common thread uniting each of these trespasses on decorum is that they make for great red meat for the respective senators’ bases. Cruz performed his opposition to Obamacare; Paul earned a massive amount of press, including adoring coverage from civil libertarians on the left; Booker’s testimony was heavily covered; and Warren’s fight with McConnell instantly turned into a viral moment. These senators are not speaking to their colleagues, and if they are, it’s as a secondary audience. The primary audience is the public, which is easier than ever to reach with smartly edited and quickly published social-media posts spotlighting the heroic senator’s stand. As a result, citizens can expect to see more incidents like what happened on Tuesday.

Warren may have been silenced on the Senate floor, but her voice was amplified widely elsewhere—and that’s likely to prove more alluring to members than upholding musty customs.