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  • Writer's pictureMarc Johnson

Byrd, Kagan and the Senate


A Monday Morning in Senate History

The news that the longest serving member of Congress in the nation’s history, Robert Byrd of West Virginia, had died got me to thinking about all that the silver maned “dean of the Senate” has seen since coming to Washington, D.C. in 1952. Think about it: Korea, McCarthy, the Cold War, Eisenhower, Kennedy, LBJ, Vietnam, civil rights, Nixon, Watergate, the rise of China, the end of the Soviet Union, radical Islam, Iraq and Afghanistan. What a time and what a career. Byrd was 92 and he loved the Senate.

Byrd, with his courtly demeanor and three piece suits, was a throwback in many ways. Before his declining health, he was one of the Senate’s great theatrical orators. Byrd was also a respecter of tradition and rules, one of the Senate’s champion appropriators – it seems like half of the bridges and buildings in West Virginia carry his name – and a fierce defender of the Senate’s role and responsibility as an institution in our system; particularly the Senate’s role in limiting executive power. His has not been a career free of controversy, either.

In the early 1940’s, Byrd organized a Ku Klux Klan chapter in his hometown, Crab Orchard, and was chosen the chapter’s “Exalted Cyclops.” The Klan connection followed him all the rest of his life. In his memoir, Child of the Appalachian Coal Fields, published in 2005, he called joining the Klan a serious case of “bad judgment” driven by the naivete and ambition of a young man.

“(Klan membership) has emerged throughout my life,” he wrote, “to haunt and embarrass me and has taught me in a very graphic way what one major mistake can do to one’s life, career, and reputation.” Byrd goes on to note, not without irony, that organizing the Klan chapter in the 1940’s served as his stepping stone to politics.

He was mentioned as a presidential or vice presidential candidate more than once, rose to become Senate Majority Leader and has been a genuine scholar of Senate history. His book – The Senate: Addresses on the History of the United States Senate, 1789-1989 – is wonderful reading for a political history buff.

In his day, Byrd could play a pretty fair fiddle. I remember seeing him in action in a stiflingly hot Boise High School auditorium during a campaign event for Sen. Frank Church in the fall of 1980.

Byrd has also been a passionate advocate for better teaching of American history and when the Federation of State Humanities Councils presented him some years back with an award for his advocacy and support, he pulled out tattered copy of a history text he had read as a child in those Appalachian coal fields. The book, now mostly long forgotten, was An American History written by a Columbia University historian, David Saville Muzzey, and first issued in 1911. Muzzey’s work was a standard American history text in the early 20th Century and Byrd praised it to nines; repeatedly referring to “his Muzzey.”

In 2004, Byrd authored another book; a slim and well-reasoned volume entitled Losing America. With the book he lamented the steady rise, during what was then his nearly 60 years in Washington, of the power of an American president to commit our military to action with little if any questioning by the Congress. The book was written in the wake of 9-11 and George W. Bush’s invasion of Iraq; a action Byrd had courageously and very openly opposed.

He wrote: “The awesome power to commit this nation to war must be taken back from the hands of a single individual – the president of the United States – and returned to the people’s representatives in Congress as the framers intended. No president must ever again be granted such license with our troops or our treasure.”

At a time when there is so much talk about threats to the Constitution from – take your pick – President Obama, the Democratic Congress, a conservative Supreme Court or talk radio it is interesting that those doing the denouncing on both the left and the right hardly ever – OK, Ron Paul is an exception – mention Byrd’s point about Article 1, Section 8, Clause 11 – “The Congress shall have power…To declare war.”

Bob Byrd knew “his Muzzey” and his Constitution. He has always carried a copy of the founding document in his coat pocket. His Senate career is one for the record books and the history books and the Senate could use his historical perspective as it takes on another Supreme Court confirmation this week.

And Now, Judging Kagan Elena Kagan’s confirmation hearings open today and the Senate’s increasing inability to comprehensively, carefully and civilly carry out the “advise and consent” function may be as much on trial as the nominee.

Republicans on the Judiciary Committee were threatening over the weekend to boycott the hearings unless they got access to more Kagan documents. Ranking GOP member Jeff Sessions even suggested a filibuster might be in order.

Almost all of this, along with unbelievable talk about Kagan’s wardrobe and looks, is little more than political theatre. The real questions that need to be asked, and probably won’t be, are much less theatrical and much more important.

Is she competent? Supreme Court clerk, White House Counsel’s Office, Harvard Law dean would argue for a yes. My question: what did she learn from those experiences and how might it apply to the Supreme Court?

Has she done anything in her professional or private life that might disqualify her – or anyone with similar history – from service on the high court? Nothing we know of.

So, ultimately, does she understand the role of a judge? While we’ll hear a good deal about her “judicial temperament” and whether she is an “activist” or a “liberal.” I’d like some member of the Senate committee to ask her who she thinks has most affected American judicial thought since 1789, or in the 20th Century? Does she know anything about Holmes and Brandeis, Marshall and Taney? What opinion of Chief Justice Rehnquist’s does she most admire? What has she read lately? How does she see the job of lawyer to the president? How will she work with Roberts and Scalia? Does she think she has any responsibility to explain herself – and her opinions – if she gots to wear the robe?

You can bet the White House has equipped Kagan with 110 ways to say “I couldn’t possibly comment on that since it is an issue that may well come before the Court.” So, maybe we could have the Senate engage her in a conversation about how she thinks, what she knows about history and the Constitution and how she will apply her experience.

I’m not holding my breath. The nineteen members of the Judiciary Committee – assuming the Republicans show up – will each need plenty of C-SPAN time. Why waste any of those precious moments on a real question that might really tell us something about the nominee when a partisan speech is possible – and expected?

Bob Byrd and Elena Kagan are joined in history this Monday morning; the history of the United States Senate. Let’s hope the current Senate is up to playing something approaching a useful role in writing one more chapter in that history, because with two problematic wars raging, a stagnant economy and millions out of work, the country hardly needs the sideshow of an unproductive fight over who should join the Supreme Court. The White House and the Senate have a stake in making things work, and work better. Why not start today?

In his massive history of the Senate, Byrd wrote lovingly about the great Majority Leader from Montana Mike Mansfield and quotes the Montanan – the longest serving leader in history – as saying: “In moments of crisis, at least, the President and the Congress cannot be adversaries; they must be allies who, together, must delineate the path to guide the nation’s massive machinery of government in a fashion which serves the interests of the people and is acceptable to the people.”

That is the Washington we need right now and can’t seem to get.

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