The latest attempt comes from Steve Michel, an environmental lawyer from Santa Fe, N.M., who filed suit in U.S. District Court in Washington on Thursday seeking to compel Senate leaders to take action on Garland arguing that the case “has created a constitutional crisis that threatens the balance and separation of power among our three branches of government.”
“There really isn’t some agenda here other than just try and restore some function to government,” Michel said in an interview. “Most lawyers, when there’s an official who isn’t doing something they’re required to do, you start thinking mandamus” — the Latin term for a judicial order compelling the government to act.
Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Charles E. Grassley (R-Iowa) are named as defendants in the case, alongside the Senate itself.
Michel is not the first person to file a lawsuit seeking to force the Senate to take up Garland’s nomination. In May, Maryland political activist Brett Kimberlin asked a federal judge in that state to intervene and force the Senate to act. A month later, U.S. District Judge George Hazel dismissed the case with a terse three-page opinion, saying Kimberlin didn’t have standing to bring the case — a key obstacle in any lawsuit. Hazel noted that Kimberlin doesn’t have a case before the Supreme Court, and he didn’t venture to argue why he would be affected even if he did.
Michel’s attempt to get a judge to intervene is somewhat more serious than Kimberlin’s. For one, he is a lawyer, though not a specialist in constitutional matters. And his initial pleading, at 33 pages, is an order of magnitude more substantial than Kimberlin’s three-page complaint.
He also offers a more robust argument for his standing to bring his case. Like Kimberlin, he doesn’t have a case before the Supreme Court but he argues he is among those who have “had the effectiveness of their vote for United States senators diminished because those senators have been deprived of their ability to vote in the Senate with respect to the nomination of Judge Garland.” That argument cites a landmark Supreme Court decision where a voter was granted standing for similar reasons, though that case dealt with the larger constitutional question of congressional apportionment and not the inner workings of Congress.
Even if the D.C. judge accepts that Michel is entitled to bring his case, Michel will still face a tough road convincing him to wade into a dispute between the executive and legislative branches — especially one that is hardly settled by a plain reading of the Constitution.
Michel is making an argument that has been embraced by many Democrats in Congress and by White House officials — that under Article II of the Constitution, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” Supreme Court justices and that the Senate is thus compelled to provide that advice and consent by holding a vote on the nominee.
Most Republicans and many experts have taken the view that the constitutional language is ambiguous at best and that the Senate is entitled to simply withhold its consent by not taking action.
Spokespersons for McConnell and Grassley declined to comment on the lawsuit. A White House spokesman declined to comment as well, noting that the Obama administration’s position continues to be that the Senate take up Garland’s nomination as soon as possible.
Michel says he researched and drafted his lawsuit himself on his personal time, and he has thus far spent hundreds of dollars out of his own pockets for court fees and a plane ticket to Washington.
“I know it’s going to be a heavy lift,” he said. “I would have hoped that someone else would have done this. … But at some point, somebody needed to get the ball rolling, and, frankly, we’re running out of time. It just needed to get done.”