The U.S. Senate and two of its key Republican leaders, relying on an array of constitutional claims, has told a federal judge that the courts must stay out of the political feud over the current vacancy on the Supreme Court. In a brief filed Monday in a federal District Court in Washington, D.C., the legislative body said the Senate has no duty to take any action on President Obama’s nomination of Circuit Judge Merrick B. Garland be approved as a Justice.
“All methods of withholding the consent necessary to confirm a nominee are legislative acts, whether characterized as ‘a refusal to act’ or whether performed by ‘the Senate’ (as opposed to its individual members),” the brief contended. And, as legislative action, the decision to simply sit on a nomination is insulated from challenge under the Constitution’s Speech or Debate Clause, the filing argued.
The filing came in response to several legal maneuvers attempted by a New Mexico lawyer, who contends that his own rights as a voter for two members of the Senate have been undermined by the Senate GOP leadership’s refusal to let his senators and the Senate as a whole vote on the Garland nomination. The lawsuit only seeks a final vote up or down, not a vote to confirm Garland.
The Senate’s rigorous defense of its independence from the judiciary takes on some added significance, as an apparently growing number of Republican senators have begun to suggest that a Republican-controlled Senate should refuse to approve any nomination to the Court proposed by Hillary Clinton, if she is elected president on November 8. That kind of resistance would go well beyond the simple refusal to accept Judge Garland as the successor to the late Justice Antonin Scalia, and would — if it succeeded — keep that seat vacant for the next four years, at the least.
From the apparent perspective of the Senate, there would be no judicial remedy for such a stalemate over the Court’s membership..
The opposition by the Senate (along with that of Senate Majority Leader Mitch McConnell, a Kentucky Republican, and Senate Judiciary Committee Chairman Charles Grassley, an Iowa Republican, was entirely as expected. A few other attempts to use the courts to try to force action on the Garland nomination have gone nowhere, but the new case of Michel v. McConnell sought to raise some new legal arguments for a role for the courts to force a Senate vote on Garland.
The Senate filing said it was taking no position on the merits of any of the New Mexico’s legal steps, since its basic argument is that such a lawsuit simply dos not belong in the courts and would amount to a grave constitutional challenge not only to the Senate, but to the core constitutional principle of separation of powers of the branches of the national government.
Here, in summary, are the Senate’s specific points against allowing the Michel lawsuit to go forward to a decision:
First, the Sante Fe lawyer, Steven S. Michel, has no right even to sue, because he cannot show that he personally would suffer any kind of legal injury by Senate inaction on the Garland nomination. His complaint, if he has one, is shared by all of the voters of the nation, and, in addition, by every member of rhe Senate, and federal courts have no authority under Article III to decide a case that does not show particular, personal injury to the person suing.
Second, Michel cannot trace the Senate’s refusal to act on the pending nomination to how Michel voted in prior elections for New Mexico’s two senators, so he cannot show a link to his claim of injury.
Third, the courts simply have no authority to issue any kind of order to the Senate to compel it to act, or not to act, on any legislative matter, including court nominations.
Fourth, the Constitution’s Speech or Debate Clause, insulating members of Congress from challenge for their legislative acts, bars a lawsuit like Michel’s because it is a challenge to how the Senate uses (or fails to use) its legislative powers.
Fifth, the question of Senate advice and consent to a judicial nomination is a “political question,” beyond the reach of the federal courts. The Senate is entitled to write its own rules of procedure, and that is a matter in the political realm, not the judicial.
Sixth, even if Michel’s lawsuit were allowed to go forward, there are no legal standards by which a court could judge the legality of Senate procedures dealing with judicial nominations.
Seventh, for a court even to consider a claim like Michels would demonstrate a serious lack of respect for another, equal branch of rhe national government.
Finally, there is no law that gives Michel any legal basis for suing the Senate and its leaders in a case like this one.
The Michel lawsuit is pending before District Judge Rudolph Contreras. Presumably, lawyer Michel will have a chance to reply to the Senate filing before the judge decides the case.
