Analysis: Forget the Warren Slap-Down, Does 'Rule 19' Hold the Key to Overcoming a SCOTUS Filibuster?
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:
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:
Rule XIX of the Standing Rules of the Senate plainly states that on any given question, a senator may speak only twice on the same legislative day. This clause is known in Senate parlance as the two-speech rule. No senator may speak more than two times on the same matter on the same legislative day...In simple terms, it means that once each senator has spoken twice on a matter, debate on that matter is concluded no matter what. It means that a final up-or-down vote is guaranteed. It does not preclude the Senate from invoking cloture before all senators have spoken twice, nor does it preclude the Senate from proceeding to a final vote in the absence of continued debate. Unlike the nuclear option, which kills debate instantly at the whim of the majority, enforcement of the two-speech rule effectively sets a limit on debate.
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.
The Senate majority has the power to bounce back and forth between legislative and executive session at will. As a result, the Senate could conduct its legislative business during the day and confine debate over the pending presidential nomination to the wee hours of the night. Thus, not only would the Senate be able to dual-track its legislative and executive business, .