Law prof: The McConnell Rule on SCOTUS confirmations is law, you know -- and Dems should sue to enforce it

The White House red-rose ceremony is just a scant nine hours away, when the world will know who gets Donald Trump’s pick to replace Anthony Kennedy at the Supreme Court. Attention will then turn from the guessing game over the pick to  his/her confirmation in the US Senate, and the political games yet to begin. One legal “expert” weighed in yesterday at The Hill to say the games should be called off in the name of the law — namely, that the courts should intervene to stop confirmation:

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”). …

McConnell’s imminent abandonment of the McConnell Rule implicates an equally fundamental democratic principle: due process for 49 percent of the Senate, which itself represents tens of millions of American citizens. Just as the judiciary would have the authority to intervene if McConnell changed the vote threshold from 51 to 40 (or, for that matter, if he refused to step aside as majority leader should the Democrats regain control of the Senate in November), so, too, the judiciary has the authority to intervene if McConnell violates his McConnell Rule.

Assuming that a court — preferably the Supreme Court — agrees with my analysis, McConnell (the defendant) would then have to argue either that the McConnell Rule is not law or that it is law but, as he claimed on June 28, applies only to “constitutionally lame-duck” presidents. Either way, however, he would lose.

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.

It’s difficult to know where to start with this nonsense from Ken Levy, other than that parents who send their children to LSU’s Holt B. Harrison School of Law should be very concerned. As anyone who bothered to follow this story at all knows, not only isn’t the “McConnell Rule” (better known as the “Biden Rule” after the man who first proposed it in 1992) a law, it’s not even a rule. That differentiates it from Harry Reid’s “reduction of the threshold,” otherwise known as the 2013 “nuclear option” that led to this Democratic cul-de-sac in the first place. Reid removed the filibuster on most presidential appointments by a simple-majority vote, the same mechanism used by McConnell to change the rule to remove the filibuster on Supreme Court nominations. All McConnell did was flex the power of the majority to set the agenda in keeping Garland from getting a hearing.

Even if it was a rule, it still wouldn’t be justiciable. The Senate sets its own rules, as does the House, without interference from the co-equal branches of the judiciary or executive. That comes straight from Article I, Section 5 as a separate power from Article III. A lawsuit to reverse Reid’s nuclear option in 2013 would have gone nowhere, as the judiciary has no jurisdiction over Article I operations of Congress. Levy seems especially confused on this point, as well as some others:

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.

Just about everything in this paragraph is either utterly wrong or irrelevant. In reverse order, the McConnell Rule wasn’t a rule at all anyway, but even if it was it would be up to the Senate to reverse it — just as Reid and McConnell did. The other types of “laws” Levy cites not only do not trump the Constitution, in some cases they have nothing to do with the legislature anyway. “General principles” and “widely accepted opinions” do not override the legislature’s ability to set its own rules, nor does it override the majority’s ability to set the agenda for each chamber. That’s really what happened with the McConnell/Biden “Rule,” and no court is going to strip the majority of its leadership of Congress to put the minority in charge. And that’s because, Levy’s rant notwithstanding, they have no jurisdiction to do so.

Like it or not, Democrats have no recourse from getting steamrollered by Republicans on this point, thanks to their own destruction of the filibuster on appointments in 2013 and their ill-advised attempt to use it on Neil Gorsuch while the GOP caucus was still unified behind Trump. They’re reduced to arguing that the Supreme Court can get along with eight members for a while to put off a nomination until after the election, an argument that Chuck Todd points out that Dick Durbin and his cohort rejected in early 2016. “There’s hypocrisy on your side on this, too,” Todd comments while Durbin blusters. There’s hypocrisy enough to go around, but Democrats made the judiciary a battlefield starting with Robert Bork thirty-one years ago. Maybe someone should ask Durbin when Miguel Estrada will get his confirmation hearing.

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David Strom 2:31 PM on October 04, 2022