The 'McConnell Rule' is law, and Senate Democrats should sue to enforce it [View all]

[highplainsdem]

Opinion piece by a law professor published by The Hill this morning:

http://thehill.com/opinion/judiciary/395696-the-mcconnell-rule-is-law-and-senate-democrats-should-sue-to-enforce-it

This week, President Trump will announce his nominee to replace Justice Anthony Kennedy on the United States Supreme Court. Senate Majority Leader Mitch McConnell has promised to schedule the nominee’s confirmation hearings for this fall, before the midterm elections.

If and when McConnell carries through on this promise, Senate Democrats should immediately file a federal lawsuit against him for violating the so-called “McConnell Rule.” (According to this rule, as McConnell himself stated on Feb. 13, 2016, “The American people should have a voice in the selection of their next Supreme Court Justice.”) The issue — whether the McConnell Rule is now binding precedent — would not be political (and therefore “nonjusticiable”) but rather fundamentally legal (and therefore “justiciable”).

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Whether McConnell likes it or not, the McConnell Rule is law. When McConnell declared in 2016 that Supreme Court nominees are not allowed hearings in an election year, that decree carried legal force — the same legal force as former majority leader Harry Reid’s reduction of the threshold to defeat filibusters for executive appointments and most judicial nominations from 60 to 51 senators.

As every lawyer knows, not all laws are statutes. Many laws come in different forms: court decisions, agency rules, general principles, customary practices, and sometimes even widely accepted opinions by legal experts. Like these non-statutory propositions, parliamentary rules announced by Senate majority leaders constitute laws as well. As a result, they are binding on future legislators unless and until they are explicitly overturned.

Importantly, if McConnell still were to maintain that the McConnell Rule is not law, then the so-called “Biden Rule” was not law either. But if the Biden Rule was not law, then McConnell’s claim on March 16, 2016, to be bound by it — “The Senate will continue to observe the Biden Rule so that the American people have a voice in this momentous decision” — was a lie so monumental that the entire process by which Justice Neil Gorsuch ascended to the high court would have to be deemed constitutionally invalid and, therefore, subject to retraction. This is obviously too great a cost for McConnell to risk.

McConnell’s only real option, then, is to concede that the McConnell Rule is law and then argue, as he did on June 28, that it applies only to “constitutionally lame-duck” presidents. But there are three problems with this argument.

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Like the rest of the judiciary, the U.S. Supreme Court is supposed to be above politics, a nonpartisan check on the other two branches. So when McConnell officially schedules confirmation hearings for Trump’s nominee, Senate Democrats need to do more than complain. They need to take him to court. And the court needs to tell McConnell, at long last, that his power extends only to facilitating the Senate’s advice and consent role, not to forcibly converting the judiciary into a mere extension of the Republican Party.