Long-shot lawsuit compels Senate to act on judge

If only it were that easy!

New Mexico lawyer Steven S. Michel last week filed a federal lawsuit, seeking to force the U.S. Senate to take up and vote on the nomination of Merrick Garland to the U.S. Supreme Court.

You remember Garland, don’t you? He’s the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, nominated on March 16 by President Barack Obama to fill the seat left vacant by the February death of Justice Antonin Scalia. The American Bar Association’s Standing Committee on the Judiciary rates him “well-qualified.”

Garland’s nomination has now been pending longer than any other Supreme Court nominee in history, due mostly to the fact that Senate Majority Leader Mitch McConnell, R-Ky., and his Judiciary Committee have refused to act. Bizarrely claiming the American people should “have a voice,” they have pledged to ignore Obama’s nomination until the nation elects a new president in November.

That boycott, by the way, includes Nevada’s own Republican junior Sen. Dean Heller, but pointedly does not include Senate Minority Leader Harry Reid, who has done everything short of stage a hunger strike to get the Senate to act.

Maybe some of Michel’s arguments will help?

Saying McConnell’s unprecedented obstructionism (my words) “has created a constitutional crisis that threatens the balance and separation of power among our three branches of government” (his words), Michel asks the courts “to determine that the Senate has a duty to decide whether to provide advice and consent for the nomination of Judge Garland and also requests that the court direct the Senate to promptly fulfill that duty.”

“In other words, petitioner requests that the court instruct [McConnell and his fellow respondents] that the Senate cannot ignore a presidential Supreme Court nominee,” Michel writes. Amen.

Failure to do so, he says, harms the president, by depriving him of his constitutional power to appoint judges of the Supreme Court; hurts the Senate, by thwarting its ability to provide advice and consent; and harms the court, by leaving it short one justice (a situation that’s already prevented a precedent-setting resolution in a high-profile case). And it harms the people, who elected Obama to make appointments and the Senate to provide advice and consent on them.

So, will the federal courts succeed in forcing McConnell to act?

UNLV Boyd School of Law Professor Ruben J. Garcia said Michel faces a tall hurdle inasmuch as the courts are likely to regard the Senate’s non-action as a “political question,” something reserved for the wisdom of senators, into which courts should not intrude. (Michel anticipates this argument, saying he wants the courts to decide whether the Senate has a duty to hold hearings and a vote, not to determine how individual senators should vote.)

But Garcia said the political question doctrine would likely bar the lawsuit from moving forward, absent extraordinary circumstances — imagine a Democratic Senate ignoring a Republican president’s nominees for an entire term, citing the McConnell Maneuver. In that case, a court may intervene, Garcia said. “It would take a lot to get to that point, at least according to the court’s view,” Garcia said.

Still, the lawsuit does illustrate how some are frustrated that a centuries-old system has collapsed because of rank partisanship. “There was always a process. The Constitution sets up a process. They’re [the Senate] not engaging in the process,” Garcia said.

There’s still time for the Senate to act, but the decision to do that will likely come only from members of the Republican majority. If this really is a political question, they should rise to answer it, instead of allowing themselves to be cloaked in the shame of McConnell’s rank vandalism of the Senate’s constitutional duty.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.