The Corner

Law & the Courts

It’s All Going to Get Dumber

I read this essay by an LSU law professor in The Hill, and I think it sets a new standard for dumb legal commentary. Ken Levy — again, a law professor — argues that the “McConnell Rule” should be treated as the law of the land, and that the Senate Democrats should then sue Mitch McConnell for not upholding it. Then, when a court (“preferably the Supreme Court,” he writes with admirable humility) agrees with Levy’s analysis, the judge (or justices) will not only prevent the Senate from considering Trump’s next SCOTUS nomination, it will actually force the Senate to “retract” Neil Gorsuch. Or something like that. Here’s a taste:

Whether McConnell likes it or not, the McConnell Rule is law. When McConnell declared in 2016 that Supreme Court nominees are not allowed hearings in an election year, that decree carried legal force — the same legal force as former majority leader Harry Reid’s reduction of the threshold to defeat filibusters for executive appointments and most judicial nominations from 60 to 51 senators.

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.

Importantly, if McConnell still were to maintain that the McConnell Rule is not law, then the so-called “Biden Rule” was not law either. But if the Biden Rule was not law, then McConnell’s claim on March 16, 2016, to be bound by it — “The Senate will continue to observe the Biden Rule so that the American people have a voice in this momentous decision” — was a lie so monumental that the entire process by which Justice Neil Gorsuch ascended to the high court would have to be deemed constitutionally invalid and, therefore, subject to retraction. This is obviously too great a cost for McConnell to risk.

It goes on, but you get the gist. I’m not going to get in the weeds rebutting any of this because the notion that any court will grant standing to senators to sue over internal Senate procedure and that the Senate would honor a court ruling of the sort Levy imagines strikes me as unworthy of a response beyond something this:

Still, the legal dunking Levy has received in his replies makes for a fun read.

Just remember: It’s all going to get dumber.

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