We’d thought we’d already written about the most desperate takes on President Trump’s selection of a Supreme Court nominee, but we’d missed this opinion piece in The Hill by law professor Ken Levy.

Here’s how it all plays out in Levy’s imagination:

… Senate Majority Leader Mitch McConnell (R-Ky.) has promised to schedule the nominee’s confirmation hearings for this fall, before the midterm elections.

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”).

First and foremost, the American people did have a voice in the selection of the next Supreme Court justice, and they expressed that voice in November of 2016. If you want to claim the McConnell Rule is law, then you’d better not leave out the part about the difference between a presidential election year and a midterm. Oh, and learn the difference between a rule and a law.

We’re not lawyers or law professors, but some people we follow are.


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