FacebookTwitterGoogle+RedditEmail

The McConnell Rule: Nasty, Brutish, and Unconstitutional

Photo by Aaron Vowels | CC BY 2.0

On Feb. 13, 2016, Senate Majority Leader Mitch McConnell announced what is now referred to as the “McConnell Rule”: “The American people should have a voice in the selection of their next Supreme Court Justice.”

Between mid-February 2016 and mid-January 2017, McConnell used this rule to deny Pres. Obama’s SCOTUS nominee, Judge Merrick Garland, the opportunity to have confirmation hearings and a subsequent up-or-down vote in the Senate. But true to form, McConnell is now scheduling pre-election confirmation hearings for Judge Brett Kavanaugh.

In a previous op-ed in The Hill, I urged Senate Democrats to sue McConnell for violating their right to a fair and consistent exercise of Senate rules. My advice was based on the assumption that the majority party is just as legally bound to comply with the procedural rules it creates as is the minority party. And contrary to some objections I received, Art. I, sec. 5 does not contradict this assumption. Art. I, sec. 5 permits the majority to create the rules, but it does not permit them to abandon these rules whenever they wish.

The one big problem with my earlier position is that I did not go far enough. Yes, by applying the McConnell Rule only to Judge Garland and not to Judge Kavanaugh, Senate Republicans are being complete hypocrites and abusing their power. But even worse, the McConnell Rule is not constitutional, at least as it was applied to Judge Garland.

Again, McConnell’s own rationale for the McConnell Rule is that, when a SCOTUS vacancy opens up, the American people should decide who fills it. McConnell now insists that he is not violating the McConnell Rule. Rather, the McConnell Rule is simply inapplicable because Trump is not a “constitutionally lame-duck president.”

But the Constitution does not say any of this. In Art. II, Sec. 2, the Constitution does not grant to the American people per se the appointment power. Instead, Art. II, Sec. 2 grants this power to the President. And nowhere does it say that a President loses this power, or any other power, during his term if he cannot run for re-election.

By infringing on Pres. Obama’s Art. II, sec. 2 appointment power, McConnell and Senate Republicans blatantly violated the Constitution between mid-Feb. 2016 and Jan. 2017. Pres. Obama tried to exercise this power. He tried to nominate and appoint Judge Garland. But the appointment power is substantive, not merely formal. It requires not merely selection and announcement of a candidate but also a genuine opportunity for this candidate to be appointed, which means an up-or-down vote. Sadly, McConnell and Senate Republicans made sure that Judge Garland was never given this opportunity.

To be sure, Art. II, sec. 2 also grants the Senate the power to advise and consent. But given our constitutional framework of checks and balances, this power must be exercised compatibly with the President’s equally awesome appointment power. While the Senate may certainly vote down the President’s nominee, it exceeds their constitutional power to prevent the President’s nominee from even having an up-or-down vote in the first place.

As attorney Daniel S. Cohen eloquently states in his article “DO YOUR DUTY (!)(?): The Distribution of Power in the Appointments Clause,”103 Virginia Law Review 673, 673-74 (2017), “[T]he Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent.”

Importantly, nothing changes if we assume that the McConnell Rule is not really a rule in the first place. Assume, then, that the McConnell Rule was not really a rule but rather a naked, partisan attempt by McConnell and Senate Republicans to keep Justice Scalia’s seat in Republican hands. Assume also that McConnell merely called it a rule – the “Biden Rule” – in a thinly veiled attempt to create the appearance that he was acting in a principled manner by following supposedly established precedent.

Here’s the rub: If the McConnell Rule was not really a rule, if it was just a majority action, then it cannot possibly be justified by the rulemaking powers granted to the Senate in Art. I, sec. 5. And if Art. I, sec. 5 no longer applies, then whether McConnell was allowed to prevent an up-or-down vote for Judge Garland may no longer be considered a political question – that is, a “nonjusticiable” question that courts do not have the authority to adjudicate.

Pres. Obama and Judge Garland had perfectly justiciable claims against McConnell and Senate Republicans back in 2016 – Pres. Obama for an infringement of his appointment power, Judge Garland for a violation of his 5th Amendment procedural due process rights. Specifically, McConnell and Senate Republicans unfairly deprived Judge Garland of a particular property right, the right to an opportunity for full Senate consideration of his SCOTUS nomination. Unfortunately, however, I believe that the window on these two claims has now closed. They are, as lawyers say, “moot.”

In order to prevent another unscrupulous McConnell-like majority leader down the road from unconstitutionally blocking a president’s judiciary nominees, Democrats (if they retake the Senate this November) need immediately to pass an amendment that clearly nullifies the McConnell Rule. The amendment should capture what was the nearly universal understanding of the President’s appointment power before Feb. 2016: barring extenuating circumstances, every judicial nominee for a federal court has the right to confirmation hearings and an up-or-down vote as long as the nomination is made more than three months before an election, whether midterm or presidential.

More articles by:

Ken Levy is the Holt B. Harrison Professor of Law at the Paul M. Hebert Law Center, Louisiana State University.

November 20, 2018
John Davis
Geographies of Violence in Southern California
Anthony Pahnke
Abolishing ICE Means Defunding it
Maximilian Werner
Why (Mostly) Men Trophy Hunt: a Biocultural Explanation
Masturah Alatas
Undercutting Female Circumcision
Jack Rasmus
Global Oil Price Deflation 2018 and Beyond
Geoff Dutton
Why High Technology’s Double-Edged Sword is So Hard to Swallow
Binoy Kampmark
Charges Under Seal: US Prosecutors Get Busy With Julian Assange
Rev. William Alberts
America Fiddles While California Burns
Forrest Hylton, Aaron Tauss and Juan Felipe Duque Agudelo
Remaking the Common Good: the Crisis of Public Higher Education in Colombia
Patrick Cockburn
What Can We Learn From a Headmaster Who Refused to Allow His Students to Celebrate Armistice Day?
Clark T. Scott
Our Most Stalwart Company
Tom H. Hastings
Look to the Right for Corruption
Edward Hunt
With Nearly 400,000 Dead in South Sudan, Will the US Finally Change Its Policy?
Thomas Knapp
Hypocrisy Alert: Republicans Agreed with Ocasio-Cortez Until About One Minute Ago
November 19, 2018
David Rosen
Amazon Deal: New York Taxpayers Fund World Biggest Sex-Toy Retailer
Sheldon Richman
Art of the Smear: the Israel Lobby Busted
Chad Hanson
Why Trump is Wrong About the California Wildfires
Dean Baker
Will Progressives Ever Think About How We Structure Markets, Instead of Accepting them as Given?
Robert Fisk
We Remember the Great War, While Palestinians Live It
Dave Lindorff
Pelosi’s Deceptive Plan: Blocking any Tax Rise Could Rule Out Medicare-for-All and Bolstering Social Security
Rick Baum
What Can We Expect From the Democrat “Alternative” Given Their Record in California?
Thomas Scott Tucker
Trump, World War I and the Lessons of Poetry
John W. Whitehead
Red Flag Gun Laws
Newton Finn
On Earth, as in Heaven: the Utopianism of Edward Bellamy
Robert Fantina
Shithole Countries: Made in the USA
René Voss
Have Your Say about Ranching in Our Point Reyes National Seashore
Weekend Edition
November 16, 2018
Friday - Sunday
Jonah Raskin
A California Jew in a Time of Anti-Semitism
Andrew Levine
Whither the Melting Pot?
Joshua Frank
Climate Change and Wildfires: The New Western Travesty
Nick Pemberton
The Revolution’s Here, Please Excuse Me While I Laugh
T.J. Coles
Israel Cannot Use Violent Self-Defense While Occupying Gaza
Rob Urie
Nuclear Weapons are a Nightmare Made in America
Paul Street
Barack von Obamenburg, Herr Donald, and Big Capitalist Hypocrisy: On How Fascism Happens
Jeffrey St. Clair
Roaming Charges: Fire is Sweeping Our Very Streets Today
Aidan O'Brien
Ireland’s New President, Other European Fools and the Abyss 
Pete Dolack
“Winners” in Amazon Sweepstakes Sure to be the Losers
Richard Eskow
Amazon, Go Home! Billions for Working People, But Not One Cent For Tribute
Ramzy Baroud
In Breach of Human Rights, Netanyahu Supports the Death Penalty against Palestinians
Brian Terrell
Ending the War in Yemen- Congressional Resolution is Not Enough!
John Laforge
Woolsey Fire Burns Toxic Santa Susana Reactor Site
Ralph Nader
The War Over Words: Republicans Easily Defeat the Democrats
M. G. Piety
Reading Plato in the Time of the Oligarchs
Rafael Correa
Ecuador’s Soft Coup and Political Persecution
Brian Cloughley
Aid Projects Can Work, But Not “Head-Smacking Stupid Ones”
David Swanson
A Tale of Two Marines
FacebookTwitterGoogle+RedditEmail