McConnell said the people decide who names the next Justice, not the Electoral College.

Here’s an idea to ponder as a sort of closing act for the Obama administration and/or and opening salvo from Senate Democrats: a mechanism for confirming Merrick Garland to the Supreme Court. As we’re all aware, congressional elections in November determined the makeup of the entirety of the House of Representatives, as well as one-third of the Senate. The Senate, of course, elects one-third of its membership every two years, such that the six-year terms are staggered among three “classes,” and two-thirds of the Senate membership remain incumbent in office even during elections and post-election transition periods.

At noon on January 3, 2017, the terms of the current members of the Senate’s Class III will come to an end. At that point, the Senate consists of 66 sitting senators, and we would ordinarily expect Vice President Joe Biden, in his capacity as Senate president (in which role he continues to serve until noon on January 20th), to begin swearing in the senators-elect of the new Class III.

Typically, the swearing-in would be the first order of business, although occasionally there are brief welcoming remarks from the Majority and Minority Leaders, the Majority Leader traditionally being afforded preferential recognition by the presiding officer. That is, he gets to speak first, if anyone has anything to say before things get started.

But when Biden looks out over the Senate floor—in what will likely be one of his last official acts—he’ll see 66 currently sworn and serving senators, 34 of whom will be Democrats, two who are independents, and 30 who are Republicans. At that moment you might wonder, then, just who constitutes the “majority,” and therefore who the Majority Leader actually is. In fact, as the numbers tell us, Democrats will make up the majority of the Senate, and their leader might arguably be entitled to preferential recognition. This situation has surely occurred before. It’s just never mattered. And so in all likelihood, absent some other plan, we would expect Biden to afford that privilege to Mitch McConnell of Kentucky, the current Majority Leader, who’s expected to continue in that role in the new Congress.

Suppose, though, that there is another plan. Suppose Biden instead chooses to recognize the sitting Democrats as the majority, that being the then-current truth of the matter? And suppose, therefore, he chose to recognize the Democratic floor leader first? Now, we all understand that Chuck Schumer of New York is slated to become the Minority Leader in 2017. But at that point, he’s merely one of the 34 senators-elect waiting to take the oath and begin his term. Dick Durbin of Illinois is, at that moment, the highest ranking Democratic floor leader. So suppose Biden were to recognize Durbin first, and grant him the floor for opening remarks?