UPDATED 02.11.17 : in light of further developments, we have revised this column substantially. Please re-read. Italics indicate the added or revised portions of this story.

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We in Massachusetts like to think that our Senior Senator is a very smart lady. After all, she professes at Harvard Law School — the pillar of young intellectual achievement at the hands of the law’s most brilliant pedagogues. No doubt Warren earns the high opinion that we have of her. Yet as we saw yesterday, even she has her intellectual limitations.

ICYMI, here is what happened : testifying in opposition to confirmation of Senator Jeff Sessions (R-AL) as Attorney General, Warren attempted read two documents into the debate : a 1986 letter from the late Coretta Scott King, and a contemporaneous testimony by then Senator Ted Kennedy. Both documents opposed Sessions’s nomination to be a Federal judge. (Sessions was not confirmed.) Warren was stopped from finishing her readings; Senate President McConnell (R-KY) invoked Senate Rule 19, saying that the readings impugned Sessions’ character and/or motive.

Immediately upon being silenced, Warren became a hero to those who are dubbed “the Left.”

Her heroism was confirmed by what happened next. No sooner did McConnell hurl Rule 19 at warren than he allowed four other Senators to read the very same material he had ruled Warren out of order for reading. All of them are men. Who can blame Warren’s supporters for concluding that she was silenced because she is female ?

Thus up went the cry : “she was warned. And yet she persisted.”

Until the silencing of Warren, opponents of Mr Trump had used the hashtag “resist. Now the #hashtag battle flag became “#persisted.”

McConnell’s move sure looks tone deaf. But surface appearances belie a deeper motive that i will discuss later in this report. Whether the motive I perceive is in fact McConnell’s, I have no idea. But if it isn’t his motive, it might well have the same effect as if it were his plan.

Because the heroism bestowed upon Warren was entirely of McConnell’s doing. The letter reading itself inflamed unfairly the debate about confirming Senator Sessions. Here’s why i say this :

First : whatever the merits of Warren’s impeaching Sessions’s character or motive, that the readings come from thirty years ago sends a wrong message about how a democratic society must work.

Second: the common law that we all live under has a device called “statutes of limitations,” by which both civil and criminal must be brought within a stated period of years or not at all. Except for murder, for which there is no limit, the accusation period ends in seven years, or three or even two.

There is a significant public policy reason for statutes of limitations . Beyond the practical — that it is difficult to find witnesses, or to depend ton their memory, of events that occurred many years ago — limitations are a kind of truce, very like the “peace of God” agreements used in the early Middle Ages to put a halt to never-ending feuds and constant anarchy. At some point, according to the “Peace of God” advocates, life just be free of old grievances. Like these “Peace of God” truces that allowed early Medieval Europe to grow and even prosper, limitation statutes call an end to old grievances which, though not resolved., are set aside by agreement so that life can start anew. (Bankruptcy law calls this sort of truce “a fresh start,” and the term is most appropriate in bankruptcy and in civil society.)

Third : we cannot have democracy is every grievance lives on forever, from generation to generation, ever to be re-fought by children, grandchildren, great grandchildren of the aggrieved. In a society where nothing is forgiven or forgotten — like those in the Middle East — wars arise almost without warning because the surface calm never extend s into the societal soul. In a democracy the opposite prevails. Old feuds are set aside, and life enjoys a fresh start in which everyone trusts each other rather than maintaining unending mutual suspicion.

Fourth : by bringing 30-year old accusations into the record, Warren violated this basic principle of democratic consensus. Granted, that her act was far from unique. At least since the 2008 election, there has been a concentrated campaign, on the political right, of refusal to set old grievances aside, indeed to revive them as if they were a fresh trouble. And as McConnell allowed four other Senators to read the letter from Mrs. King, the use of 30-year old material continues.

Fifth : On the other political side, this kind of never-forget tribalism was slow to take hold; Hillary Clinton’s campaign spoke of the future, not of old grievances. (That may be one big reason why she lost, as re-stoking old fires was the flash point of the entire campaign season.) Likewise, most opposition to President Trump’s cabinet nominations has focused on a nominee’s recent record and statements. So what happened this time ?

Sixth : There is plenty in Senator Sessions’s recent record as a Senator to negate his confirmation. So why did Warren choose to attack him from thirty years ago ? Probably for the same reason that Judge Neil Gorsuch’s opponents have cited yearbook language from his high school and college days 30 years ago and more : find the most inflammatory grievance you can, no matter how decomposed by time, and prop it up with the formaldehyde of never-forget.

This tactic works, but it also generates backlash. Just as it did in the era of feuds and grievance.

Warren is not alone here. For some on the Left, the ills of slavery, ended over 160 years ago, remain a source of present grievance, extended into Constitutional interpretation and even into political settlements that had little if anything to do with it, such as the Second Amendment. (And as slavery was the most wrong of many past American wrongs, it serves admirably as a weapon for invalidating all manner of arrangements disliked by those who attack it with the slavery hammer.) Of course we should remember slavery’s wrongs, and the era of lynching terror too, but with shame, and so as never to repeat them, not as present sources of grievance.

I truly believe that Senator Warren is smarter than her censured action of yesterday. But I am sure that she did not think out the excesses of resort to never forget, never forgive ways of doing society’s business. (edited out a long next sentence)

By reading the letter from Mrs. King, she allowed senator McConnell to spring a trap : I think Senator McConnell knew very well that silencing Warren, while allowing four other Senators to rad the same letter, he would make Warren a hero to his opposition, even the opposition’s leader. I think he judges Warren less electable as the 2020 Democratic nominee for President than a less polarizing figure : Missouri’s Jason Kander, Washington state Attorney General Bob Ferguson, New Jersey’s Cory Booker.

Senator McConnell plays the long game, ruthlessly, and so far he has won his long bets. Opponents of Mr. Trump — and i am certainly among them — should think carefully avoiding playing McConnell’s game.

So much for the McConnell decision. As for Senator Sessions, I am distressed that he was confirmed as Attorney General. I think he will use the Department of justice to harass immigrants and will prevent it from aggressively protecting the voting rights of people of color. Indeed, yesterday’s oppressive raids by the Immigration Police upon areas of cities heavily populated by people of Hispanic origin signal the pogrom state of affairs that Sessions surely intends to wreak upon immigrant families. He has said as much. But I do not find it at all helpful to bruise him with actions and thoughts that he may or may not have held 30 years ago. Our democracy must be stronger than that; should have more integrity than that; and must pursue a future free at last of the handcuff past.

—- Mike Freedberg / Here and Sphere



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