Booker’s lament can't stop Senate Republicans from acting as Trump's henchmen

Will Democrats ever go to the mat and play their own brand of hardball?

Sen. Cory Booker (D-N.J.) speaks at the Senate Judiciary Committee’s July 17 meeting. (C-SPAN screengrab)

The Senate is broken. Like the other branches of the federal government, it would no longer be recognizable to the Founders and generations of people who served there.

What happened last week in the upper chamber put its dysfunction on display for the entire nation to see. In the space of two days, the Senate abdicated its key legislative prerogative and witnessed a naked display of power politics that pierced the fiction of collegiality and decorum that animated the body for generations.

In a virtually unprecedented concession to the executive branch, the Senate went along with President Donald Trump’s $9 billion rescission bill, which even its Republican members admitted intruded on the power of the purse that the Constitution assigns to Congress. Then, in a meeting of the Judiciary Committee, the committee’s chair, Charles Grassley (R-Iowa), ignored the committee rules and traditions to strong-arm a favorable vote on the president’s nomination of Emil Bove to a seat on the Third Circuit Court of Appeals.

In neither of those instances were Democrats ready to go to the mat and play their own brand of hardball. Their impotence was most vividly displayed during an eight-minute-long plea by Sen. Cory Booker to try to convince Grassley not to shatter Judiciary Committee norms.

Not surprisingly, it came to no avail.

Before looking more closely at what Booker said and why it failed, let’s recall what the Senate is supposed to be and the traditions to which the New Jersey Senator vainly appealed. At the start of the republic, James Madison took a leading role in explaining why the aristocratic Senate belonged in the Constitution and the vital role it would play in the form of government that document established.

Writing in Federalist 62, he described what he called “the nature of the senatorial trust,” an attribute that would be nurtured by special senatorial qualifications, including “a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter.”

As Madison explained, being a good senator required a “greater extent of information and stability of character.” He observed that a “senator should have reached a period of life most likely to supply these advantages.”

Madison said the Senate would be “in all cases a salutary check on the government.” It would be, he promised, a bulwark, resisting “schemes of usurpation or perfidy.”

An explanation of the history and foundations of the Senate offered on that body’s website provides a kind of vindication of Madison’s hopes. “Senators,” it says, “have tended to be somewhat older and more experienced than representatives, and the Senate has remained a deliberative institution that has brought caution and stability to the legislative process.”

It quotes what Madison said at the Constitutional Convention. The “ ‘use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch’ of the Congress.”

But this was not only the Senate’s self-description. The late professor Richard Fenno, one of the nation’s most distinguished students of Congress, described the Senate of the mid-20th century as “a place where everyone knew everyone else; and it was … a club-a men's club, of course-or a small town.”

“The conduct of affairs,” Fenno noted, “depended heavily on the kinds of informal understandings that regulated interpersonal relationships. These understandings, or norms, were internally generated, internally enunciated, and internally enforced. They expressed, therefore, the general idea that senators should be especially responsive to stimuli that came from their colleagues inside the institution.”

Reciprocity, courtesy, cordiality, and decorum were what used to make the Senate work. All that is long gone.

But you would never have gleaned that from Booker’s response to Grassley’s refusal to allow a vote to hear from witnesses about Bove’s nomination. It all started calmly enough, with Booker discussing the president’s failure to honor the tradition of deferring to senators from states served by the jurisdiction of the court to which someone might be appointed.

Booker then appealed to the need for the Judiciary Committee to honor the Senate’s constitutional responsibility to “advise and consent.” He complained that the committee could not do that job without fully investigating claims made about Bove’s history of misconduct in various government position he has occupied in the past.

“I don’t understand,” Booker said, “why we are refusing to hear the legitimate concerns” of former prosecutors and judges about Bove. He also highlighted the Judiciary Committee’s refusal to hear testimony from a whistleblower about Bove’s alleged statement that the Trump administration should say “f*** you” to courts that rule against it during a meeting in the Justice Department.

So far, still pretty much standard fare coming from a senator from the minority party and someone hoping to derail a judicial nominee.

Things went south when Booker demanded that Grassley abide by the committee’s rules and allow a non-debatable motion to call the whistleblower to testify. He insisted that the committee’s rules required the chair to honor that demand.

Grassley initially directed the clerk of the committee to call the roll, but he abruptly changed course after an aide put a piece of paper in front of him. He ruled Booker’s motion out of order, reading from the paper and explaining that what Booker wanted was not on the committee’s agenda.

Not dissuaded, the New Jersey senator insisted over and over again that the committee chair had to follow the rules. When that went nowhere, Booker tried appealing to the norms that Fenno described. “We respect each other in this committee,” he said.

Booker insisted that what Grassley was doing “undermined the basic dignity of [the] committee.” He asked Grassley to behave with “decency” and honor the committee’s own “precedents.”

Then, reaching beyond rules, precedents, and traditions, Booker tried another route, appealing to character of the kind Madison expected senators to possess. “You are a person of integrity … of decency,” he said to Grassley. “We are not showing common respect to each other,” Booker continued, appealing yet again to the venerated traditions of the Senate.

Booker vented, but his lamentations fell on deaf ears.

It was embarrassing to watch. One man appealing to things that another has long stopped caring about.

Rules, traditions, dignity, integrity, and decency. In the Trump era, those things don’t seem to matter to the president’s Senate henchmen.

When will the Democrats learn?

It is time they play hardball with whatever tools are available in the Senate. They could draft a resolution to censure Grassley and conduct a mock hearing on that motion if they cannot bring it to a vote of the full Senate.

Would it pass? No, but it would send a message.

Booker and his colleagues could also work with the Democratic National Committee to run ads in Iowa mocking Grassley, showing him seemingly following instructions from his staff.

Senate Democrats like Booker need to accept that there is no shame among the political leaders of the MAGA movement. As eloquent and impassioned as Booker was, if we are to save the Republic, he and his Democratic colleagues cannot spend any more time lamenting a bygone era.

It is time they recall Machiavelli’s wisdom: “The fact is that a man who wants to act virtuously in every way necessarily comes to grief among the many who are not virtuous.” That is why politicians “must be prepared not to be virtuous, and to make use of this or not according to need.”

The need is great. The time is now to follow Machiavelli’s advice.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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