With little time left for Senate action on the long-stalled Supreme Court nomination of Judge Merrick B. Garland, a New Mexico lawyer’s attempt to force a vote in the chamber was rebuffed again on Thursday, this time by the U.S. Court of Appeals for the District of Columbia Circuit.
Santa Fe lawyer Steven S. Michel, who had been pursuing for weeks his legal effort to get a court order to compel the Senate to act on Judge Garland, is now down to just two options, neither of which is very promising. One would be to ask the full D.C. Circuit for an order, and the other would be to try to persuade the Supreme Court to take his case.
The D.C. Circuit panel, saying the outcome was so clear to it that it would act without ordering full briefs or oral argument, agreed with a federal District Court judge’s recent ruling that Michel did not have a right to sue because he could not show that he was personally harmed by Senate inaction on the nomination of Garland to succeed the late Justice Antonin Scalia.
Michel had claimed that, as a New Mexico voter who had voted for the election of his state’s two senators, his own vote had been diminished by Senate GOP leaders’ decision not to let any member of the Senate consider or vote on Judge Garland. That claim of injury, the Circuit Court panel said, was “wholly abstract and widely dispersed,’ and that would not satisfy the demands of the Constitution’s Article III limiting federal court jurisdiction.
While some Senate Democrats have talked from time to time about possible maneuvers to force a Senate vote on the nomination during the current post-election session, there does not appear to be a realistic option to do so in the Republican-controlled chamber.
It thus seems very likely that a vacancy that has been open since February, and that President Obama had been trying since March to fill, will now pass to President-elect Donald Trump — a switch that could have significant impact on the Court, especially over the next four years.