Taking his last chance at trying to force the Senate to vote on Judge Merrick B. Garland’s nomination to the Supreme Court, a New Mexico lawyer on Thursday asked the Supreme Court to order the Senate to act, one way or the other. In an emergency request, Santa Fe attorney Steven S. Michel (representing himself and his rights as a voter) sought an order for an up-or-down Senate vote on Garland.
Michel’s nearly four month personal campaign in federal courts has been thwarted by two lower court rulings, both declaring that he could not show that he was personally harmed by Senate inaction and thus had no legal right to sue. He sought to strongly contest that in his emergency application, filed with Chief Justice John G. Roberts, Jr.
Roberts handles emergency legal matters from the District of Columbia federal circuit, encompassing the lower U.S. courts in the nation’s capital. The Chief Justice has the authority to act on his own, or he can refer Michel’s plea to his seven other colleagues for joint action — the more common practice these days. He also has the option of asking the Senate to reply to the new application.
Garland, who is the chief judge of the D.C. Circuit Court, has been awaiting Senate action since he was nominated on March 16 by President Obama to replace the late Justice Antonin Scalia. Senate Republican leaders decided even before Garland was nominated that no action of any kind would be taken until after the presidential election, and have continued to withhold action on Garland since the election more than more than five weeks ago.
No other Supreme Court nominee in history has waited as long for the Senate to act.
In his filing in the Supreme Court on Thursday, Santa Fe lawyer Michel argued that the Constitution does not permit the Senate to simply ignore a Supreme Court nomination. He cited history going back to the Founding generation and a string of Supreme Court precedents in an effort to show that a simple refusal of the Senate to respond in this kind of situation violates the constitutional concept of separation of powers.
Although he defended President Obama;s right to make the nomination and have it acted upon, much of Michel’s filing is an attempt to defend his own rights as a voter to show that he has a direct and personal stake in having New Mexico’s two senators not deprived of their right to vote in the Senate. Their vote derives directly from the Seventeenth Amendment, he noted, and as a New Mexico citizen who voted for both of those senators, he has a personal right to have their vote not taken away by the action of only a few senators blocking action on the Garland nomination.
Michel’s specifically asked the Supreme Court to compel a final Senate vote before President Obama leaves office at noon on January 20, when President-elect Donald Trump is to be sworn in. It is unclear at this point whether the Garland nomination will remain before the Senate after Congress adjourns its current post-election session later this month.
Under Senate rules, all nominations not acted upon by the end of the session are returned to the White House. In a footnote in his application, Michel conceded that point, but said it was not constitutionally necessary for the nomination to lapse simply at the end of a congressional session.
If the Garland nomination is returned to the White House when the lawmakers adjourn this month, it would not be before the new Congress that assembles on January 3 unless President Obama submits the nomination anew. There seem to be few, if any, options for members of the Senate themselves to force a vote prior to inauguration day.