The Senate rule that directed Sen. Elizabeth Warren to stop talking could be deployed by Republicans to thwart a Democratic filibuster of Judge Neil Gorsuch, Donald Trump’s nominee for the Supreme Court. But such a move could make the Senate environment even more toxic, if that’s possible.
Democrats panned the move by Majority Leader Mitch McConnell and his fellow Republicans on Tuesday night to require Warren, the liberal icon from Massachusetts, to take her seat for violating the chamber’s decorum, specifically Rule 19.
“Anyone who watches the Senate floor on a daily basis could tell you that what happened last night was the most selective enforcement of Rule 19,” Minority Leader Charles E. Schumer said Wednesday from the floor. “My friend, the senator from Massachusetts, was here when one of her colleagues called the leadership of my dear friend Sen. Reid ‘cancerous,’ and that he ‘doesn’t care about the safety’ of our troops. That was not enforced as a Rule 19 violation. But reading a letter from Coretta Scott King — that was too much.”
Warren was reading from a statement by the late Sen. Edward M. Kennedy and a letter by Martin Luther King Jr.’s widow that the GOP said impugned the character of Alabama Sen. Jeff Sessions, who was confirmed as attorney general late Wednesday. Schumer’s “cancerous” reference was to a statement Arkansas Republican Sen. Tom Cotton directed last year at Minority Leader Harry Reid.
While Warren could not speak on the floor, she went on a media blitz Wednesday.
“If there are 51 Republicans that want to get on the bandwagon with Jeff Sessions, that’s on them. But I’ll say this. We count on the grass roots all across this country, the American people,” Warren told Yahoo! News.
The liberal fervor over blocking Warren from speaking could pale in comparison to what might happen if the majority party enforced another part of the now notorious Rule 19 known as “the two-speech rule.”
James Wallner and Ed Corrigan of The Heritage Foundation made the case in a paper released last month that McConnell could push Trump’s high court nominee (since announced as Gorsuch) to confirmation without a standoff over the “nuclear option” — Senate parlance for getting rid of the filibuster rule that requires 60 votes to cut off debate.
“Doing so simply requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the nominee in question,” Wallner and Corrigan wrote. They added that the majority could then just call for a vote on the nominee that would only require a simple majority for confirmation.
This interpretation of the two-speech rule would rely on a ruling of the presiding officer or a decision from the floor that a legislative day, rather than a calendar day, is the relevant method of tracking how often senators may speak. Legislative days can span multiple calendar days, due to the chamber’s rules.
Several senators thought it was unlikely such an interpretation would be valid. The Senate has remained on the same legislative day since Monday, unable to get consent for adjournment as Democrats have forced their GOP colleagues to burn the clock on a series of Trump executive-branch nominees that could run through confirmation of Treasury Secretary nominee Steve Mnuchin on Saturday.
After Tuesday night’s standoff between Warren and McConnell, everyone seems to be dusting off their guides to parliamentary peculiarities.
“I’ve heard more discussion about the Standing Rules of the Senate lately than I thought I ever would,” Majority Whip John Cornyn said Wednesday.
“We’re paying attention to all the various procedural considerations and debate,” the Texas Republican said when asked about the two-speech limitation. “Certainly, that’s one of the considerations, but I’m not familiar with what they’re proposing.”
Republican Conference Chairman John Thune of South Dakota said he had yet to hear any internal discussion of deploying this other debate-limiting component of Rule 19.
“I haven’t seen that … school of thought talked about yet,” Thune said. “Obviously, I’m sure we will be hearing about it if that’s the next thing.”
“I think right now what we want to do is, as much as we can, allow the Senate to work its will, allow people to have as much debate as they want,” he said. “My preference, obviously, would be that people come down in good faith, make their remarks and have the opportunity to have the debate that we believe the Senate is about, but at some point move to a final conclusion.”