Late last week, a Federal Judge rejected an ill-fated attempt to make an end-run around the Senate to find a way to put Merrick Garland on the Supreme Court:

Merrick Garland’s last, long-shot chance at being confirmed as a Supreme Court justice has now vanished: A federal judge on Thursday dismissed a case that sought to force the Senate to take up his nomination.

Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, has languished without Senate action since March, when President Obama nominated him to succeed the late Justice Antonin Scalia. A New Mexico lawyer filed suit in August, seeking to force Republican leaders in the Senate to act on the nomination, arguing that they had “created a constitutional crisis that threatens the balance and separation of power among our three branches of government.”

The plaintiff, Steve Michel, said he had the legal standing to bring the case because he is among those who have “had the effectiveness of their vote for United States senators diminished” because the senators who represent him have been denied their ability to vote on Garland’s nomination.

But U.S. District Judge Rudolph Contreras didn’t buy it. In a five-page opinion issued Thursday, Contreras held that “Mr. Michel has not shown that he has suffered an individualized injury such that he can maintain this action.”

“This alleged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state Senators have been frustrated by the rules and leadership of the United States Senate. This is far from the type of direct, individualized harm that warrants judicial review,” Contreras wrote.

Senate Majority Leader Mitch McConnell (R-Ky.) announced in the hours after Scalia’s February death that he would not act on any Obama nomination, thus leaving the task to the next president. Democrats fumed for months over the unprecedented blockade, but McConnell’s gamble paid off: Republicans won the White House and kept their Senate majority, paving the way for President-elect Donald Trump to name a Supreme Court nominee early next year.

Even if Michel had won a favorable ruling from Contreras, there was virtually no scenario that might have resulted in Garland’s confirmation. The Senate is expected to be in session for only three more weeks before the end of the current Congress, and the Senate would have appealed any adverse decision issue, cutting into that time frame. And even if the Supreme Court itself ordered the Senate to act on Garland’s nomination, individual senators could not be compelled to confirm him.

Even if Michel had won a favorable ruling from Contreras, there was virtually no scenario that might have resulted in Garland’s confirmation. The Senate is expected to be in session for only three more weeks before the end of the current Congress, and the Senate would have appealed any adverse decision issue, cutting into that time frame. And even if the Supreme Court itself ordered the Senate to act on Garland’s nomination, individual senators could not be compelled to confirm him.

Essentially Judge Contreras dismissed the lawsuit on the ground that Michael lacked standing to bring any claim at all relating to the Senate’s failure to act on the Garland nomination. As a matter of law this seems to me to be entirely correct since it’s simply nonsense to say that an individual voter who cannot point to a material loss of any kind due to Senate inaction on this issue should have standing to file a lawsuit to force the Senate to act. The first reason, of course, is that without any particularized damage on the part of the Plaintiff there really isn’t any legal claim that a Court can or should entertain. Second, allowing claims such as this to proceed forward in the Court would encourage a plethora of largely meritless lawsuits over what are essentially political disputes between the two political parties, or between the Legislative and Executive Branches, which is an area that the Judiciary has traditionally demurred from getting involved. Even beyond this issue, though, it is clear that the merits of Michael’s lawsuit were complete nonsense. Leaving aside the politics or propriety of the situation, there is nothing in the Constitution that  requires the Senate to act on a nomination to the Supreme Court or any other position. It merely says that the President will nominate someone and that the Senate must vote to approve the nomination for it to become effective. There is no sanction for the Senate failing to act, which itself is arguably a form of ‘advise and consent,’ and no way to push the nomination without Senate approval. As I discussed in the wake of Justice Scalia’s death (see here , here , here and here ), this is entirely a political matter and, based on the outcome of the election it does not appear that the American people believed that the GOP should be punished for its refusal to act.

On a related note, another lawyer in Washington, D.C. argued in  The Washington Post  that President Obama that the Senate’s inaction meant Obama could install Garland on the Supreme Court on his own:

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution . It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said , “ ’No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

This argument is, in the end, as nonsensical as the one raised in Michael’s lawsuit, and if implemented would pose twice the danger to Constitutional comity between the branches of government. There is, quite simply, no evidence in the text of the Constitution, and no historical evidence, to support the idea that the Senate ‘waives’ its right to approve or disapprove of any nominee, either to the Supreme Court or any other level of the Federal Judiciary or the Executive Branch simply by how long it takes them to act on a particular nomination. The single case that is cited in favor of waiver in the article is  United States v. Olano et al , a criminal case that is completely inapplicable to the current situation. In that case, the Defendants argued that their rights under the Seventh Amendment had been violated due to the presence in deliberations of alternate jurors, an issue which the Judge had discussed with Defense Counsel three separate times during the course of the trial. The defendants seemingly consciously waived their right to object to this presence, and the Court ruled accordingly. In other words, there was arguably a conscious waiver of the right to object on the Seventh Amendment. That is not the case here. In addition to the fact, that there has been no conscious waiver by the Senate of its power to review the nominee before he is elevated to the Court, there is nothing in the Constitution to indicate that a power granted to one branch of government can be deemed waived by another branch of government. Therefore, this argument is no more legitimate than any of the other that have been raised in response to the Senate’s failure to act on the Garland nomination. For better or worse, the Senate Republican Caucus’s political calculus worked in this case, and Justice Scalia’s replacement will be chosen by President Trump after January 20th.

Please visit the source link below to read the full opinion.