Analysis: Forget the Warren Slap-Down, Does 'Rule 19' Hold the Key to...?

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:

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:

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.

The history of rule 19 is interesting.

A rat Senator was SC was mad that the state’s other Senator was working with Republicans on some issues!!!! So he insulted him on the Senate floor. The other guy wasn’t there but heard about and rushed to the floor to confront him, the instigator then attacked him. Both were censured.

https://www.senate.gov/artandhistory/history/common/censure_cases/090Tillman_Laurin.htm

Reminds me of the famous caning of Senator Sumter.

I found this

http://www.ourcampaigns.com/RaceDetail.html?RaceID=50707

I laughed.

But the incident was an outrage, Brooks should have been expelled and sent to prison for attempted murder. It seems he was not punished at all, though perhaps he was by God, as he died painfully a few years later.

I’m someone who has offered a vigorous defense of Congressman Brooks, after having read the actual (and not whitewashed) version of events. Sumner was deliberately attempting to incite a ruckus by viciously attacking Brooks’ relative, SC Sen. Andrew Pickens Butler. Sumner chose to do so when Butler was not present in the Senate, a shameful action, as Butler could not answer the charges made. Sen. Stephen Douglas was present when Sumner went on the attack, remarking to a colleague that his comments were going to get someone killed.

Someone went and alerted Brooks about the speech, and he deliberated as to the proper response. Sen. Butler was apparently content to let the speech not get to him, since he knew Sumner was a blowhard (Butler was also not someone who could challenge Sumner to a physical altercation, as he was an older man, by that era’s standards, and in declining health). Brooks was not so willing to let it go, and after concluding Sumner was no gentleman, indeed, about on the same level as a rabid dog (cur, as they would say), he could not challenge him to a duel. He decided that he should be properly flogged (hence, he could not have been charged with attempted murder - he was not trying to kill him).

As Sumner was on the floor of the Senate, Brooks and his fellow SC colleague, Laurence Keitt, went to confront him (this was days after the original speech). Rep. Keitt stood by to halt any attempt for the flogging with the gutta-percha cane be interrupted by any bystanders as Brooks pummeled Sumner until the cane snapped, concluding the incident. Both Brooks and Keitt resigned and then promptly won back their seats in special elections held, with Brooks being sent scores of brand new gutta-percha canes by admirers.

As you cited, Brooks would die the following year from illness. His relative, Sen. Butler, would die the same year as well. Keitt would die during the Civil War. Sumner would not return to the Senate for several years, being reelected in absentia (and milking his beating for all it was worth). Sumner was, and has been portrayed as a hero, but frankly, he was doing everything possible to foment divisional hatred and bring about war. This was an example of a radical politician whose mouth wrote a check his ass couldn’t cash.

Whitewashed version?

His speech seemed on point to me, it was harsh but the truth was harsh, slavery was evil and we still live with it’s consequences, having an unruly population of Afro-Americans. Seems he wrote it before hand so it’s not his fault Butler wasn’t there, was it? The war was gonna happen, absent massive statesmanship that certainly wasn’t being offered by the losers who preceded Lincoln as President or by congressional democrats.

In any case, different time or not you cannot beat a man half to death on the floor of the Senate for talking smack about your cuz.

Whitewashed, as in “Sumner the martyr” being beaten down for speaking about slavery, when it was a deliberate, incendiary speech attacking a well-respected Southern Senator in what was (then) some of the most guttural and vile terms imaginable. Sumner would not have been permitted to make the speech today as it violates Senate decorum and rules (as we saw last week with Fauxcahontas similarly attempting to impugn the character of Jeff Sessions. Lizzie Warren curiously sits in Sumner’s seat today).

Sumner could have made his point about slavery without resorting to personal attacks on the floor, or the cowardly stance of delivering the speech when the subject of his attack was not present. It was not a high point of that body’s history. A real statesman would’ve tried every imaginable way to prevent a civil war. Sumner just wanted blood and to douse the burning divisions with gasoline. Ghoulish more in the style of leftist Democrats today and their deliberate methods to incite rather than unite.

Add to that, the hypocrisy of many Northern Republicans on the issue of slavery in being so concerned about “Black issues” from so far away where they scarcely had to deal with it close-up. If Sumner had been as “high minded” after the Civil War (he served until his death in 1874, having switched to the Liberal Republican Party for the 1872 elections, essentially a Democrat Party opposing President Grant), he would’ve prescribed removing emancipated slaves en masse from the South to take up residence safe in the bosom of the tolerant peoples of the Commonwealth of Massachusetts. Of course, had he done that, he’d have likely been lynched by his White constituents (and somewhere Preston Brooks would’ve been smiling at the irony).

By implying he might shoot you if you tried to step in and stop a man from being beaten by a thug. That’s called aiding and abetting nowadays and it’s a felony. Actually under current law you might be able to charge him with assault as well, they charge accomplices with murder even when they didn’t pull the trigger.

“Dueling was a sport for gentlemen.”

Aaron Burr wasn’t a gentleman. Some slave-loving thug who assaults people isn’t a gentleman either and shouldn’t be compared to the President.

Assault is a crime. Anyone can claim “oh he’s an a-hole I’m gonna kick his butt”. You can’t have that on the floor of the damn Congress. Duels had rules, that was the point, to settle the dispute in a civilized way (as civilized as any fight) rather than through criminal assault. One’s opinion (and it’s always an opinion, I gave mine) on whether one’s foe is a gentleman or not is irrelevant.

I 100% believe Brooks should have been expelled, not cool. I can understand why you might think Sumter was a jerk though I don’t agree, but I can’t believe how far you are going excusing Brooks. He could have friggin killed him. Head trauma is real *ss stuff, Sumter wasn’t being a big baby. You can’t have dudes caning fellow members of Congress no matter what they say. I might love it if Ted Cruz took a baseball bat to Al Franken and put him in traction but that’s not cool man.

I think the point of the speech was slavery=not gentlemanly so no matter how courteous their Southern manners were the slave industry shills in Congress were not gentleman.

I think that’s a good point.

Even if it’s not it’s not license for violent assault in the halls of Congress.

As for the slaves, we should have repatriated them to Africa (no matter the cost or whether they wanted to go or not, in the long run it would have been for the best).

“Well you wouldn’t want them living by you”, is not a valid defense of the institution of slavery.

I’m getting in late on this one, but I’ll give my two-cents’ worth. Sen. Sumner saying that Sen. Butler had an “ugly mistress,” and then explainin his metaphor that the “mistress” was slavery, and describing the evils of the institution, was perfectly legitimate, not a personal attack upon a fellow senator, and not a violation of (the future) Rule XIX. Butler was openly and proudly supportive of the “peculiar institution” of slavery, and it was not defamatory for Sumner to point it out and explain what it implied any more than it would have been defamatory for Sen. Warren to claim that Sen. Sessions was prejudiced against blacks had Sessions been openly and proudly racist (had Coretta Scott King’s letter not told lies about Sessions then Warren’s reading it wouldn’t have violated Rule XIX).

But there was one thing about Sumner’s speech that was out of line and absolutely a violation of decorum, and something for which he deserved some form of punishment (albeit not getting caned half to death by a William Zanzinger wannabe): Sumner mocked the way that Butler spoke, not merely his accent, but his slurring after he had suffered a stroke. The Senate definitely should have reprimanded Sumner for having done so.

That being said, Brooks’s actions were absolutely out of proportion for the offense taken and Brooks should have been (i) expelled from the Senate and (ii) prosecuted for felony assault and battery and attempted murder. And the Senator that kept back those attempting to stop the assault of a man helplessly trapped under a desk also should have been reprimanded by the Senate and prosecuted criminally. The Speech and Debate Clause protecs things said in Congress, not attempted murder.

You’ve set me to googling William Zigzager or whoever. ;d

Anyway, thanks for the coin.

Keitt (the accomplice) and Brooks himself were members of the House of course and not Senators. Wikipedia mentions another rat Rep. helping keep anyone from aiding Sumter, Henry A. Edmundson of Virginia, who nearly attacked another Representative on the House floor a couple years prior.

Keitt’s Wikipedia article says Keitt was censured by the House, Edmundson’s censure resolution was voted down. Brooks himself seems to have even escaped censure. Govtrack.com has a great Congressional votes database but the older votes are a little hard to decipher sometimes.

As much as some might deserve it I’m glad there is no longer violence in Congress.

>> As for the slaves, we should have repatriated them to Africa (no matter the cost or whether they wanted to go or not, in the long run it would have been for the best). <<

I think this was a moot point by the 1850s. The slave trade had been abolished in 1808 and the vast majority of slaves living in the United States at the time were not only born there, but had lived there for generations. One of the reasons Liberia failed so miserably is that the country was created entirely by American born blacks being "returned" to Africa when they had absolutely no concept of life in Africa or African culture.

The general consensus of Republicans after the civil war was that the former slaves should be integrated into American society and made full citizens of this country. That was probably the wisest course of action but in reality it took another century to achieve thanks to racist RATs fighting it tooth and nail.

The Lonesome Death of Hattie Carroll
by Bob Dylan

William Zanzinger killed poor Hattie Carroll
With a cane that he twirled around his diamond ring finger
At a Baltimore hotel society gathering
And the cops were called in and his weapon took from him
As they rode him in custody down to the station
And booked William Zanzinger for first-degree murder

But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain’t the time for your tears

William Zanzinger, who at twenty-four years
Owns a tobacco farm of six hundred acres
With rich wealthy parents who provide and protect him
And high office relations in the politics of Maryland
Reacted to his deed with a shrug of his shoulders
And swear words and sneering, and his tongue it was snarling
In a matter of minutes, on bail was out walking

But you who philosophize disgrace and criticize fears
Take the rag away from your face
Now ain’t the time for your tears

Hattie Carroll was a maid in the kitchen
She was fifty-one years old and gave birth to ten children
Who carried the dishes and took out the garbage
And never sat once at the head of the table
And didn’t even talk to the people at the table
Who just cleaned up all the food from the table
And emptied the ashtrays on a whole other level
Got killed by a blow, lay slain by a cane
That sailed through the air and came down through the room
Doomed and determined to destroy all the gentle
And she never done nothing to William Zanzinger

And you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain’t the time for your tears

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ‘em
And that the ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin’ that way without warnin’
And he spoke through his cloak, most deep and distinguished
And handed out strongly, for penalty and repentance
William Zanzinger with a six-month sentence

Oh, but you who philosophize disgrace and criticize all fears
Bury the rag deep in your face
For now’s the time for your tears

Good morning, Worm your honor.
The crown will plainly show
The prisoner who now stands before you
Was caught red-handed showing feelings
Showing feelings of an almost human nature;
This will not do.
Call the schoolmaster!

I always said he’d come to no good
In the end your honor.
If they’d let me have my way I could
Have flayed him into shape.
But my hands were tied,
The bleeding hearts and artists
Let him get away with murder.
Let me hammer him today?

Crazy,
Toys in the attic I am crazy,
Truly gone fishing.
They must have taken my marbles away.
Crazy, toys in the attic he is crazy.

You little shit you’re in it now,
I hope they throw away the key.
You should have talked to me more often
Than you did, but no! You had to go
Your own way, have you broken any
Homes up lately?
Just five minutes, Worm your honor,
Him and Me, alone.

Baaaaaaaaaabe!
Come to mother baby, let me hold you
In my arms.
M’lud I never wanted him to
Get in any trouble.
Why’d he ever have to leave me?
Worm, your honor, let me take him home.

Crazy,
Over the rainbow, I am crazy,
Bars in the window.
There must have been a door there in the wall
When I came in.
Crazy, over the rainbow, he is crazy.

The evidence before the court is
Incontrivertable, there’s no need for
The jury to retire.
In all my years of judging
I have never heard before
Of someone more deserving
Of the full penaltie of law.
The way you made them suffer,
Your exquisite wife and mother,
Fills me with the urge to defecate!

“Hey Judge! Shit on him!”

As I said, Keitt wasn’t going to shoot anyone. He and Edmundson were there to prevent any interference. Brooks was not attempting to murder Sumner, either. An attempt to charge him with such would’ve been absurd. Had he borrowed Keitt’s pistol (or used his own) and shot him down, that would’ve been attempted murder (as Brooks said himself, if he was going to kill him, he’d not have used his cane).

I found more troubling that of MA Congressman Anson Burlingame wanting to avenge the beating by murdering Brooks (taking advantage of the fact that Burlingame was an excellent shot), and he wanted to do so on foreign soil in Canada. Brooks did not accept such a challenge, because it was obvious this was an attempt to murder.

I think the feelings were mutual on both sides as to which were lacking in gentlemanly traits.

Repatriation of slaves to Africa was impractical by that point, other than for those who had memories of Africa and were taken across the ocean in their lifetime. As pointed out, those that went back to Liberia were so thoroughly Americanized that they were outright aliens and both groups never formally were able to assimilate into a single nationality to this day.

The comment I made wasn’t a defense of slavery, but an expose of the hypocrisy of many Northern Abolitionists. It’s quite similar to the Democrats today wanting to import illegals and Mohammadans en masse, but they’d never have them living in their homes and neighborhoods. Many Northern politicians quietly enacted laws post-Civil War to make sure few to no Blacks were permitted to move into their communities. Good enough to free so long as they stayed far away in the South.

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