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?
Garland is a weenie. I don’t want him.
Steve Groen stated my point at length and mostly better than I did. However, we are all injured by having a bye via a tie vote in a supreme court case. So anybody has standing, imho.
“If the shoe was on the other hand would the right-wing feel the same way?”
True. It already happened.
And Biden opposed the 1992 election-season SCOTUS nomination saying:
Hypocrites.
Let me help Glenn formulate his response to you KCF:
“Oh, that’s right. Thank you for pointing that out!”
If the shoe was on the other hand would the right-wing feel the same way? I think not, they would be doing want they always do….stomp their feet and hold their breath till they get what they want…..
The Supreme Court is in no way a check or balance to Congress, it is simply an extension of Congress and possibly the Hollywood/Major Media conglomerate. 99% of the court’s action go unreported in the main Stream Media and Justices serve well past the point of physical or mental dexterity. It is a political post just like Attorney General and is increasingly Oz like in it’s actions. Sotomayor typifies someone whose abilities and wisdom were no factor in her nomination or confirmation, she is merely a figure, a compilation of various conditions or attributes – Gender, Ethnicity,Political Affiliation, Regionalism, but not Caution, Brilliance, or Learning.
The Legislature, not the Constitution, establishes how many justices sit on the Supreme Court. In addition, nothing in the Constitution requires there to be an odd number of justices.
For standing there must have been an actual injury to Steven Michel or imminent threat of actual injury. I don’t see how there’s been an actual or threatened injury to Mr. Michel.
Essentially, he’s brought this lawsuit under third-party standing on behalf of someone else, i.e., either the President, who nominated Merrick Garland, or Judge Garland himself, or he’s brought it claiming his taxpayer status as standing.
For third-party standing, there must be a non-constitutional injury (usually economic harm, e.g., a city ordinance banning skateboard rentals at the beach where plaintiff is a skate rental shop); some hindrance preventing Mr. Michel from asserting his own constitutional or federal law rights (e.g, the skate board rental shop’s First Amendment rights to freedom of expression or association at the beach); or, some special relationship between the plaintiff and the third party whose rights are being asserted (e.g., buyer/seller, doctor/patient, attorney/client, employer/employee). Are there any facts that Mr. Michel meets any of these criteria?
For taxpayer standing, the challenged federal action (i.e., a Senate majority sandbagging on consent of a Supreme Court nominee) must arise from the taxing and spending power and violate some specific constitutional limitation. Because a Senate majority is not using the taxing and spending power to sandbag the nomination, there’s clearly no taxpayer standing.
What this may boil down to is this: If Barack Obama really had wanted Merrick Garland on the high court, he has standing and should have sued. “[H]e shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, . . .” (Art. II, sec. 2.) This language seems to say that the Senate must take up the issue of the nomination, not by vote in the Judiciary Committee, but by the full Senate and impliedly within a reasonable time. For these reasons, I think the President may have desired the efficacy of his nomination of Judge Garland more than the actual ratification of his nominee.
Maybe a class action of voters?. We are all being hurt by the non-acting Congress.
Who says we are all being hurt??? I think one less liberal idiot on the bench means we are all being helped!
Squeeky Fromm
Girl Reporter
“Ironic” Horrific comes to mind but then again at this point it really is moot.
Wouldn’t it be ironic if the outcome here is BO seated in SCOTUS for life? All because REPs backed themselves into a corner. But I doubt he wants the job. We’ll see
Garland is a dork who should not be on the Supreme Court. Obama made a mistake. The Congress needs to reject him. Hilliary will need to put someone else on the Court. I have a suggestion: Obama.
“He wrote that the Senate “has created a constitutional crisis that threatens the balance and separation of power among our three branches of government.””
What balance and separation is he referring to? Didn’t that ship sail a long time ago which is why JT is representing the House in their suit against the Executive branch? I’ll go out on a limb here and bet Michel is not equally concerned with the constitutional crisis created by this Executive branch.
This guy wouldn’t know a constitutional crisis if it kicked his door in in the middle of the night because of a strong opinion he posted on facebook.
Olly – speaking of a ship already sailing; the President feels he can sign TPP all on his own, but since it is a treaty, the Senate feels it has to approve. The President is going to sign it when he goes to China or China comes here.
Paul,
Your choice of words is more significant than you may realize. Over the last 100 years our government has conducted its affairs largely based on “FEELINGS” with little to no regard whether those feelings align with the constitution they swore to support and defend. This is why I believe progressives have turned this once constitutional republic into a utilitarian democracy. It then should come as no surprise that the advocates for a constitutionally-limited government are routinely denounced for their perceived “insensitivity” towards the plight of the less fortunate among us. As long as these progressives on both sides of the ledger continue to successfully sell utilitarian compassion, they will retain their majority “mandate” for a government that is feeling its way toward total collapse.
Nicely done!
“I say he should have standing.”
More like grandstanding.
The constitution states that the Senate shall provide advice and consent. It does not allow for a few senators to hold this hostage.
I say he should have standing.
Reblogged this on Matthews' Blog.
Just curious, if the senate were controlled by the Democrats, would attorney Michel go forward with the same law suite?
He will never establish standing. This is going nowhere.
No standing. He will never get a hearing on the Merricks. . .
But, I wonder if someone could file a 28 USC 1927 type action against him??? Haven’t the time to look it up right now..
Squeeky Fromm
Girl Reporter
Darren Smith, call this attorney’s action whatever you want but I hope there were many more like him!
This is more of a political statement than a meritorious lawsuit.