An Ever Less Deliberative Body

The Senate has often been referred to as the World’s Greatest Deliberative Body, most frequently by the Senators themselves. But the confirmation hearings on President Trump’s nominations have been marked by an absence of deliberation and responsive argument. They reveal a nation in the grip of polarization and interest group power.

The Democrats have been making a show of holding up  the President’s nominees with late night sessions. And in these sessions they did make some arguments against the nominees. The Republicans almost never responded substantively.  It is not as if they cannot respond. For instance, many of the arguments against Betsey DeVos were very weak based on distortions of her record of promoting charters schools in Detroit and on the inaccurate premise more competition in K-12 would harm rather than help children.  But Republicans recognized that few people were paying attention other than the Democratic base. More dramatic debate would just draw more attention to the Democratic resistance.  And what would please the Republican base were not arguments, but the actual confirmations for which Republicans had the votes.

And lest one think the Democrats were interested in actually persuading their colleagues, they boycotted at least three committee hearings where nominees were going to be debated. Walking out made a great show of anger to please their own base, but made a mockery of deliberation. Woodrow Wilson famously said Congress in action is Congress in committee.  During these confirmations congressional inaction was Congress in committee.

The only time that I saw floor debate come alive was about the question of whether Elizabeth Warren violated Senate Rule 19. The Rule provides that: “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.” Warren had quoted Edward Kennedy and Coretta Scott King to the effect that Senator Jeff Sessions had acted with racial animus. After being warned, she was told by the Chair to sit down, because she had violated the rule.

Senators were for once bereft of their talking points. Some rose to make arguments they had formulated by themselves and others responded to their colleagues. Senator Sheldon Whitehouse tried to get the letters that Warren quoted in the record, but Senator Mike Crapo objected on the basis that the rule prohibited indirect imputations. Senator Jeff Merkely made the point that the rule as interpreted prevented opponents of a Senator’s confirmation from making points that they could about the confirmation of a non-Senator.  But others noted that the language of the rule makes no exception for confirmations.

The most eloquent speech was made by Senator Marco Rubio. He defended the rule by arguing that it was impossible to have good deliberation if Senators impugned the motives of one another.  And real give and take in the legislature does promote compromise and civic understanding.   Of course, a powerful response to his speech might be that in age of polarization and 24 hours cable news, this rule, however well intended, is ineffective in advancing deliberation. The Senate’s general performance in recent days suggests that it is a relic of another age where compromise and conciliation rather than just stoking of anger and pleasing the base were the ends of politics.