Unfit To Serve In The Senate

Roy Moore campaign sign from his 2010 gubernatorial campaign. Photo by Mike Licht.

Majority Leader Mitch McConnell (among a growing number of others) has said that Alabama’s former judge Roy Moore is unfit to serve in the Senate now that his reported history of romantic and sexual interest in teenage girls has come to light.

This is absolutely untrue. Moore was never fit to sit in the Senate in the first place.

The Senate’s oath of office in its current form includes a pledge not only to support and defend the U.S. Constitution, but to “bear true faith and allegiance to the same.” Yet Moore’s history demonstrates he is all but eager to defy the Constitution on a regular basis in service of what he believes to be a higher form of law.

Moore clearly does not understand the First Amendment and its requirement that freedom of religion must mean, in secular contexts, freedom from Moore’s personal interpretation of the dictates of his professed faith. Moore became known nationally as the “Ten Commandments Judge” in 2001 after he commissioned and installed a granite monument of the Ten Commandments in Alabama’s state Supreme Court building. Two years later, he refused to obey a federal court order to remove it following a legal challenge to a religious symbol being so prominently featured in a government building. Moore’s refusal to back down led to the Alabama Court of the Judiciary suspending and eventually removing him from office as chief justice.

Even earlier in his career, Moore refused to follow another federal court order to stop his practice of beginning jury selection with prayer. That dispute also involved a display of the Ten Commandments, hand-carved by Moore and displayed on his courtroom wall.

Moore seems to have trouble grasping the concept behind equal protection under the law as pronounced by the U.S. Supreme Court, too. He sought and won re-election to the Alabama Supreme Court bench in 2012, putting him back in place just in time to defy the irresistible momentum toward nationwide same-sex marriage. More than seven months before Obergefell v. Hodges, Moore wrote an order informing Alabama’s probate judges that regardless of the Supreme Court’s decision, Alabama would not grant marriage licenses to same-sex couples. The ordered netted Moore six ethics violations from the Judicial Inquiry Commission and another suspension; this time, after a failed legal battle to retain his seat, Moore resigned.

“I don’t defy federal court orders when they’re within the law,” Moore argued in court in 2016, either ignoring or eliding the reality that federal court orders are, by definition, the law.

Moore has also argued that homosexual parents should not be allowed to see their own children without supervision and that homosexuality is “an inherent evil against which children must be protected,” not only opposing adoption by same-sex couples but suggesting that gay parents should not be allowed to retain custody of their biological children.

All of this was publicly known well before The Washington Post reported on Moore’s alleged sexual advances on teenage girls, including one who was 14 years old, and before another woman came forward on Monday to accuse Moore of assaulting her when she was 16. (Moore has strenuously denied all allegations of sexual misconduct.)

Alabamians, of course, have the right to elect virtually anyone they wish to represent them in the Senate, no matter how unqualified or unfit for the office. And if the pressure for Moore to withdraw from McConnell and other Senate Republicans doesn’t work, the Senate may face the decision of what to do with Moore if he is elected. Sen. Cory Gardner, R-Colo., has called on the Senate to expel Moore if he wins. The Republican Party’s campaign arm for the Senate has already cut off a fundraising agreement with Moore.

The Senate does have the power to stop a senator from taking his seat if he’s elected, but probably cannot do so with Moore, since the rules require that someone can only be excluded if the senator was not duly elected or fails to meet constitutional qualifications. The Constitution permits the Senate to expel members, however, though the body has not done so since the Civil War. The Senate’s Ethics Committee could investigate Moore’s conduct, and if the committee finds grounds for expulsion, McConnell could bring the question before the full Senate. A two-thirds majority is required to remove a senator in this situation, making this a very high bar – though in Moore’s case, perhaps not impossibly so.

Short of expulsion, but when faced with a member so widely regarded as unfit, the Senate would be well within its institutional rights to, at a minimum, withhold committee and staffing assignments. It also could, and should, publicly censure such a member’s objectionable conduct.

It will probably not come to this, however; I very much doubt that Moore will ever take a Senate seat. So why does McConnell really want Moore to withdraw?

Under Alabama election law, it is too late to remove Moore from the December ballot. Inevitably there will be a write-in campaign on the behalf of some other Republican, possibly current seat-warmer Sen. Luther Strange, who lost the primary runoff to Moore. If Moore continues to campaign, the most plausible outcome is that the election will split the Republican vote and send Democrat Doug Jones to represent a state of which he is scarcely representative. If, however, Moore does withdraw, it increases the odds that a write-in candidate would win, keeping the seat securely in Republican hands.

At this writing Moore was still insisting that he would not step down. Regardless of what happens next, however, Moore’s history amply demonstrates that he is unfit for the office he seeks, and in the unlikely event of his election, his tenure is apt to be a brief and lonely one.