Michael C. Macchiarola (St. Francis College) has posted Constitution Over Comity: Toward Ensuring that the Senate's Advice and Consent Power Does Not 'Take a Seat' to the Opportunistic Use of Senate Rule (58 Santa Clara L. Rev. 295 (2018)) on SSRN. Here is the abstract:
On February 7, 2017, Senate Majority Leader Mitch McConnell cited an arcane Senate rule to halt Senator Elizabeth Warren’s opposition to the nomination of her Senate colleague, Jeff Sessions of Alabama, to the post of Attorney General of the United States. Senator McConnell accused Senator Warren of violating a longstanding Senate rule prohibiting any senator from “directly or indirectly, by any form of words, imput[ing] to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.” By invoking the rule, Senator McConnell effectively silenced Senator Warren’s attack, as she was instructed by the presiding officer to be seated, in accordance with the provisions of the rule. The Article examines the colorful history of Rule XIX, surveys its prior invocations and analyzes its limitations before questioning whether a Senate rule aimed at decorum should be employed to limit the Senate’s advice and consent function with respect to an executive branch nominee. The Article examines the history and philosophy of the advice and consent power enshrined in the Constitution and vested in the United States Senate and reviews the tradition of Senate decorum. The tension between the use of Rule XIX and the Senate’s Constitutional advice and consent power is examined before several potential arrangements are offered by which the Senate might sidestep a similar episode in the future. The Article seeks a solution faithful to the maintenance of civility within the Senate chamber, yet supportive of the Senate’s Constitutional responsibility to ensure the proper investigation of the merits of a sitting senator nominated by the executive.