The Founders who wrote the Constitution wanted the powers of the national government’s three branches to be kept separate, but not entirely free of being checked by each other’s powers. Even so, any citizen seeking to get one branch to act against another faces a number of significant obstacles – not least, proving that he or she has a personal stake in that goal.
With frustration rising among some Americans that the Senate’s leaders have now allowed a nominee to the Supreme Court to be kept waiting for nearly six months for some action, it is no surprise that there have been attempts to compel the Senate to act.
A nationwide campaign of political-style rallies and advertising has done nothing to break the impasse between the Senate and President Obama over Judge Merrick Garland’s nomination. And at least two lawsuits to try to nudge the Senate into action have been swiftly thrown out of court.
A third lawsuit has now been filed and, at least as drafted by the lawyer involved, it attempts to get over all of the usual obstacles to citizen action through the courts. In fact, it is so comprehensive that if it, too, is dismissed, that would suggest that the legal route to moving the Garland nomination forward is truly a forlorn gesture. It would take some boldness on the part of the judge assigned to the case, District Judge Rudolph Contreras, to let the case proceed to a final decision. Should he be persuaded that there is, indeed, a constitutional crisis now surrounding this nomination, he might well be more inclined to find that he has the authority to decide it.
Santa Fe attorney Steven S. Michel has, indeed, sought to frame his case as a reaction to a constitutional crisis. Suing on his own behalf as a voter, Michel’s claim is that there is a crisis “that threatens the balance and separation of power among our three branches of government.”
The threat, according to the complaint, is that it (1) “has divested the President of his constitutional power to appoint justices to the Supreme Court,” (2) “has divested individual senators and their constituents of each senator’s right to evaluate and vote on whether to confirm a Supreme Court nominee,” (3) “has compromised the viability and strength of the judiciary,” and (4) “has disenfranchised United States citizens of the outcome of their votes for president and senator.”
While, in the end, Michel seeks only to prove that he has been injured as a voter, he claims that harm based upon the malfunctioning of what he sees as the normal operation of the judicial nomination process that the Constitution spells out. He is not seeking to act as the agent of President Obama, of senators who want action on Garland, or of Judge Garland himself, and the fact that he has not done so was probably wise because he has no legal right to speak for any of them. But as a citizen voter, according to the complaint, he has an interest in the regular order and in avoiding the hazards to a functioning government that he sees resulting from the current impasse.
The Constitution limits the power of the federal courts to decide, confining them to judging actual “cases or controversies.” And, in order to make sure that each case does involve a live, general controversy in the law, the Supreme Court has long insisted that anyone seeking to sue must demonstrate a direct injury from some action by government, must prove that the injury results from that action, and must prove that the courts have a way to fashion a remedy for that injury.
Through the 33 pages of legal reasoning that Michel spelled out in his lawsuit, he seeks to satisfy each of those tests, and to do so in the midst of an argument that the Senate’s Republican leaders have allowed a handful of senators – themselves and the GOP members of the Senate Judiciary Committee – to simply declare that President Obama lacked any authority to get a Senate vote on a nominee to the Supreme Court when the President still had fully nine months remaining in his term in the White House.
Michel has cited a few cases where the courts have agreed to issue orders to officials in the other branches of government to take action. And he has put forth what he clearly regards as strong answers to the objection – sure to be made by the Senate – that the Senate is the sole judge of how it carries out its tasks, and is also protested from outside compulsion by the Constitution’s insulation under the Speech or Debate Clause.
The Santa Fe lawyer has told news reporters that he is aware that his case is a long shot, legally speaking, but that he is satisfied that the effort had to be made. After the Senate’s leaders respond, the matter will be in Judge Contreras’ hands.