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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe 'McConnell Rule' is law, and Senate Democrats should sue to enforce it
The McConnell Rule is law, and Senate Democrats should sue to enforce it
http://thehill.com/opinion/judiciary/395696-the-mcconnell-rule-is-law-and-senate-democrats-should-sue-to-enforce-it
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).
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 Senates substantial constitutional powers. Imagine, for example, that McConnell suddenly stipulated that only 40 instead of 51 votes were necessary to confirm a Supreme Court nominee. Clearly, the validity of this rule change would be a constitutional question, rather than a political question, because it implicates a fundamental democratic principle: majority rule.
McConnells 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.
<<snip>>
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 Trumps 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 Senates advice and consent role, not to forcibly converting the judiciary into a mere extension of the Republican Party.
PoliticAverse
(26,366 posts)dajoki
(10,678 posts)SWBTATTReg
(21,856 posts)dup is nice for those who has missed something. After all, there are tons of stuff out here in DU land, and it's sometimes easy to miss something. Take care all!
dajoki
(10,678 posts)tritsofme
(17,320 posts)Trying to make the point that McConnell is a chameleon.
Though it is a shame that someone might read this piece and take it seriously, and look incredibly foolish in the process of making this argument.
mr_lebowski
(33,643 posts)If a suit of this nature was to be brought, it should've been by Obama in 2016. The next time it could POSSIBLY happen is in 2024, and that's if Dems are in charge of the Senate, and Trump is still POTUS (dog forbid) and he sues to make them consider his SCOTUS nominee (if he had the chance to make one that year), if the Dems were refusing to do so based on the McConnell Rule.
McConnell's 'rule', such as it is, specifically addressed a POTUS making a SCOTUS pick in a year KNOWN to be his last one in office. It was never based on it simply being 'an election year'. Half the years a POTUS is in office are 'election years' FFS. Can't make a rule that like.
Then again, they shouldn't have been able to make up the 'McConnell Rule', either.
Fact is, Obama should've sued, because this "Rule" was NOT CONSTITUTIONAL. Yet he didn't do so. Our Constitutional Lawyer POTUS ... bless his heart, love the guy, but he fucked up on that one, big time. IMHO, anyway.
The Senate should've been forced to hold vote(s), for as many nominees as Obama put before them ... period.
All I can think of is that he knew SCOTUS wouldn't touch it ... but he should've TRIED.
tritsofme
(17,320 posts)McConnell violated norms, not law.
mr_lebowski
(33,643 posts)The CONSTITUTION states the Senate must advise and provide consent (or not) on POTUS choices.
The Constitution is law. Refusing to advice and (consider) consent is an abrogation of their Constitutional obligation.
Seems like a case could at least be made that the the Supreme Law of the Land ... was violated.
tritsofme
(17,320 posts)The Senate majority has broad authority to determine how they carry out their advice and consent function. There is no constitutional command that the Senate hold hearings or votes.
The Senate fails to act on dozens of nominees each year, and they expire and are returned to the White House at the end of each session.
Garland, while obviously much more prominent that an ambassador who languished, from a constitutional perspective, is no different.
As I said, McConnell violated important norms in our system, not the Constitution itself.
mr_lebowski
(33,643 posts)And decided in the way you describe?
If so, then I withdraw my complaint against Obama and Dems.
In either case, it's stupid to do what the article suggests as it's not a comparable situation.
tritsofme
(17,320 posts)Obama presumably had no interest in filing such a blatantly frivolous lawsuit.
As to this article, it is so silly I have to assume it was written in the vane of A Modest Proposal
fallout87
(819 posts)That's why it hasn't gone to SCOTUS.
Demsrule86
(68,347 posts)the Senate and the presidency...We won't win this and it is foolish to endanger the midterm...imagine if we don't get the House and the GOP get four or five Senators...
mr_lebowski
(33,643 posts)fight McConnell's treachery, if we were going to fight.
many a good man
(5,997 posts)A Republican-majority Senate has NEVER EVER confirmed a Supreme Court justice nominated by a Democratic president.
Democrats need to do the same so here's to hoping the nomination goes off the tracks and no one gets confirmed before the new senate is seated.
PoliticAverse
(26,366 posts)the senate (the Garland nomination). During that period Democrats confirmed 11 Republican nominations and rejected 3.
See: https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States