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?
I guess the overarching Constitutional issue is that, if the Senate decides to go on a sit-down strike, the Executive branch has no choice but to do likewise. (though I doubt the original framers had ever contemplated such a situation)
David Benson: Thanks for your comment, but although I think we agree that sandbagging a nomination is inappropriate, if not unconstitutional where the plaintiff has standing, I have to ask you objectively just how we are “all [actually] injured” when there is no ninth justice and in light of the following:
1) The overwhelming majority of cases placed in the hands of the justices on appeal or are on a petition for writ of certiorari (under the Rule of Four*) are rejected; and,
2) There is no guarantee that any case will result in majority opinion, let alone a 4-4 decision once the case is accepted.
Objectively viewed, I think it’s a too far a stretch to say we’re “all injured” without a ninth justice.
Best regards.
*The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court’s docket. https://en.wikipedia.org/wiki/Rule_of_four
“were there a vacancy” is the key KCF. There was no vacancy at the time. Obama has a vacancy.