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…