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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.

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

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