Supreme Court nominee Merrick Garland is in the unenviable position of having everyone in Washington saying nice things about him. There are two occasions when that is common: a judicial nomination going no where and eulogy. For Garland, it may be both. The Senate Republicans have already said that Garland will not receive a hearing, let alone a vote, before the inauguration of the next president. For attorney Steven Michel, that is too long. Michel has filed an action in federal court demanding a judicial order to force the Senate to take up the Garland nomination. Despite my agreement that Garland should receive a vote, the lawsuit is meritless in my view. The Senate clearly has the authority to withhold consent by refusing a hearing or a vote to a nominee.
Michel is an environmental lawyer from Santa Fe, N.M., who filed suit in U.S. District Court in Washington. He wrote that the Senate “has created a constitutional crisis that threatens the balance and separation of power among our three branches of government.”
The problem it is precisely the separation of powers that bars this type of action. A federal court cannot order the Senate to carry out a discretionary act, even if he could establish standing .
He names Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Charles E. Grassley (R-Iowa) as well as the Senate as a whole.
Michel admits that “it’s going to be a heavy lift.” That is putting is lightly. The action will certainly fail in my view. What do you think?