Arguing that the Senate “cannot ignore a nomination” to the Supreme Court, a New Mexico lawyer on Tuesday took to another level in the federal courts his one-man effort to force a vote on President Obama’s choice of Circuit Judge Merrick G. Garland to become a Justice.
Steven S. Michel of Santa Fe, whose challenge to Senate inaction was rejected for a procedural reason by a federal trial judge last Thursday, asked the U.S. Court of Appeals for the District of Columbia Circuit to order the Senate to consider and act on Garland by the end of the year.
Taking the plea seriously, at least at this initial stage, a Circuit Court panel of three judges ordered the Senate to respond to Michel’s plea by noon on November 29. Michel can file a reply the next day.
Michel has not been demanding a specific outcome on the Garland nomination, but he is seeking an up-or-down vote in the post-election Senate session. His filing in the D.C. Circuit specifically sought a court order to require the Senate’s Republican leader to schedule a vote of the full Senate by the end of the current Congress next month, an order to require the Senate Judiciary Committee to hold “any necessary hearings,” and an order to the full Senate itself to act.
The Garland nomination, sent to the Senate on March 16, has now been on hold in the Senate without any action for 251 days — a record for a Supreme Court nominee. Senate GOP leaders have said, since the death of Justice Antonin Scalia in February, that the Senate would do nothing with an Obama nominee, insisting that the vacant seat be filled by the president chosen on November 8 — now, President-elect Donald Trump.
The New Mexico lawyer’s plea to the Circuit Court is based on a fundamental constitutional argument that the Senate has no choice but to consider, before the full body, a Supreme Court nomination. By failing to do so, he has contended, the Senate deprives New Mexico’s two senators of their opportunity to vote on the nomination, and that deprives New Mexico voters like Michel of their right to be represented by the senators for whom they had voted.
In rejecting Michel’s lawsuit last week, District Judge Rudolph Contreras declared that the case could not go forward because Michel had not shown that he would suffer a personal injury, direct to himself, from Senate inaction. Among other arguments in his Circuit Court filing, Michel sought to buttress his right to be contesting the inaction.