The Washington PostDemocracy Dies in Darkness

Judge dashes Merrick Garland’s final, faint hope for a Supreme Court seat

Federal appeals court judge Merrick Garland, right, walks out with President Obama and Vice President Biden as he is introduced as Obama’s nominee for the Supreme Court during an announcement in the Rose Garden of the White House on March 16, 2016. (AP Photo/Andrew Harnik)

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.”

This New Mexico lawyer is suing the Senate to force action on Merrick Garland

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.

“I can’t say I’m surprised,” Michel said Thursday, noting that the standing issue “was sort of the hurdle I knew going into this.”

But he said he had not ruled out further litigation: “I’m going to look at it. This is too important of an issue to just let go. … I’ve invested too much in this effort to just let it go if there’s an opportunity. But I’ve got to be realistic here.”

In another long-odds effort to force Garland onto the high court, more than 150,000 people have signed a petition hosted on the White House website urging Obama to “exercise his independent constitutional right” to simply appoint Garland to the court. That seizes on an argument from one lawyer who says the Senate waived its constitutional role of advise and consent, thus allowing for a direct appointment. There is no indication the Obama administration embraces that view, but there are enough signatures on the petition to warrant an official White House response.