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.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Recent Popular Posts

Related Posts

Comments

  1. says

    I think I have been posting on this site for about 18 months, beginning with a proposal to use the preamble rather than merely referring to it. Discussions at our public libraries and elsewhere evolved a proposal to establish public-integrity using iterative-collaboration to discover the-objective-truth.

    I expressed support for Donald Trump before he was elected. I recently expressed elsewhere that after writing for two decades about the insufficiency of honesty and the need for integrity to the-objective-truth, that Trump has taught me the idea (yet to be affirmed) that a person who offers integrity can confront dishonesty with dishonesty until the dishonest party concludes that he or she must resort to integrity to the-objective-truth in order to talk. (Einstein informed us civic people don’t lie so they can communicate.)

    President Obama promised President Elect Trump that he would help his transition as sincerely as President Bush helped President Obama. Perhaps Obama retired to Alinsky-Marxist organizer (AMO). I hear AMO in his farewell speech as well as his last press conference. It’s scary, but can be defeated with widespread awareness and frank discussion.

    I just discovered D. L. Adams at http://www.familysecuritymatters.org/authors/detail/dl-adams . His essay, “Saul Alinsky and the Rise of Amorality in American Politics,” 2010 suggests that Obama left to the USA AMO to replace the Democratic Party. The AMO party, following Saul Alinsky, intends a future of continuous battles with no particular end—no particular goal. Just constant conflict.

    I so appreciate Adams’s essays. Please read the one on Alinsky . . . amoralty and comment.

  2. gabe says

    “World’s Greatest Deliberative Body” – not since the advent of the TV screen.

    Nothing but posturing for the cameras and the base. I mean, why do you think John McCain has had so many facelifts.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>