Senator Byrd

I have so far not discussed Senator Robert Byrd's remarks on the Senate floor in which he likened the Republican proposal to end filibusters on judicial nominees to the tactics of Hitler, not because the story was meritless, but due to constraints of time. The story received little coverage in the mainstream press until the Anti-Defamation League condemned the remarks. Last night I heard an apologist for the Senator state that Byrd never likened the Republicans to Nazis, but was simply making a historical analogy. You be the judge:

"Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini’s Italy, have never stopped being a nation of laws, not of men. But witness how men with motives and a majority can manipulate law to cruel and unjust ends. . . . Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal. And that is what the nuclear option seeks to do to Rule XXII of the Standing Rules of the Senate."

Byrd still won't let go of the argument against changing Senate rules, though, as this op-ed piece is in today's Washington Post. Captain's Quarters has done an excellent job of dissecting Byrd's Senate remarks, and attempted defense of the speech, here and here. Senator John Cornyn of Texas has already compiled this piece shredding Byrd's claims.

I would add the following to Cornyn's piece. Senator Byrd claims in the op-ed that "The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints." This longstanding tradition is due to Senate rules, not with any Constitutional madate.

The Supreme Court case cited by Senator Cornyn dealt with a rule change by the House of Representatives. After noting that the Constitution gives to each house the right to prescribe its own rules, the Court went on to state that,

"within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

As Cornyn notes, Senator Byrd recognized this in 1979, when he sought a change in Senate practices: "This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate."

Senator Byrd is not being well-served by his staff, to allow him to continue making these contradictory arguments. The "dean of the Senate" is looking more and more like the crazy uncle at the reunion.

Hat tip: The Corner.