A law professor has come up with yet another inventive way to #Resist the Donald Trump administration: Use the courts to enforce a US Senate rule as if it were law.
Louisiana State University’s Ken Levy says that when Senate Majority Leader Mitch McConnell “carries through on [his] promise” to schedule hearings this fall for President Trump’s Supreme Court nominee, Democrats should “immediately file a federal lawsuit against him.”
“The minority party needs to have some remedy, some legal recourse, when the majority leader is completely immune to considerations of fairness and consistency in his exercise of the Senate’s substantial constitutional powers,” Levy writes in The Hill.
But … was McConnell inconsistent?
According to Levy, the so-called “McConnell Rule” means “the American people should have a voice in the selection of their next Supreme Court Justice.” He links to a Washington Examiner story for further explanation; however, the professor seems to have glossed over the following (though not entirely):
“But as McConnell discussed in an expansive interview with ‘Behind Closed Doors,’ a Washington Examiner podcast, he was referring to presidential, not midterm, elections” when he decided not to hold hearings on Barack Obama’s 2016 Supreme Court pick Merrick Garland following the death of Antonin Scalia.
Nevertheless, the McConnell Rule has “legal force,” Levy argues, just as former Senate Majority Leader Harry Reid’s decision to lower the vote for stopping judicial nomination filibusters did.
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.
Levy claims McConnell’s use of the term “constitutionally lame duck [president]” is key. He says the 1992 “Biden Rule” which McConnell invoked against Garland did not involve a lame duck president (George H.W. Bush had only so far served one term), nor in 2016 because Barack Obama still had 11 months to serve in his second term.
[E]ven if we concede that 11 months left in a presidency somehow constitutes a lame-duck period, then four months left for the current Senate certainly constitutes a lame-duck period. And it would be entirely arbitrary and unjustifiable to apply the McConnell Rule only to lame-duck presidents and not to lame-duck Senates.
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.
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