That’s what a federal judge ruled Thursday in dismissing the case of a New Mexico citizen who sued Sens. Mitch McConnell (R-Ky.) and Chuck Grassley (R-Iowa) over their refusal to hold a floor vote for Merrick Garland, President Barack Obama’s choice to sit on the high court.
Garland has been twiddling his thumbs for eight months waiting for Senate action. In July, he broke the record as the nominee who has waited the longest in history for confirmation.
The plaintiff, a lawyer from Santa Fe, New Mexico, alleged that the two Republican senators ― who hold leadership positions and have direct control over whether Garland gets a confirmation vote ― had robbed him of his constitutional right to Senate representation.
This is where the argument gets interesting. It turns out New Mexico’s two senators, Tom Udall and Martin Heinrich ― both Democrats ― have met with Garland, and heartily support his nomination to fill the seat of the late Justice Antonin Scalia.
But both McConnell and Grassley haven’t lifted a finger to move the Garland confirmation, which the lawyer who brought the case, Steven Michel, said violated his Seventeenth Amendment right “to elect his senators by depriving his home-state senators of a voice in the Senate.”
No dice. U.S. District Judge Rudolph Contreras in Washington ruled that Michel had no legal right to sue the top Senate Republicans because the injury he claimed was too generalized and would require the judicial branch to resolve a problem best left to the political process.
Quoting from earlier precedent, Contreras said it “would be unwise to permit the federal courts to become a higher legislature where a congressman who has failed to persuade his colleagues can always renew the battle.”
The judge added that allowing this kind of case to move forward would open the door to “suits from all citizens who feel that their representatives have been treated unfairly by the legislative process.”
I think there is a strong case that the Constitution does not allow the Senate to just ignore a Supreme Court nominee. Steven Michel
This kind of case, in other words, is not allowed by the Constitution’s limits on judicial authority to hear cases. (The Supreme Court last month declined a similar long-shot bid to get the Senate to act on Garland.)
Reached for comment about the ruling, Michel, who practices environmental law in New Mexico and represented himself in this case, told The Huffington Post he hadn’t yet decided whether to appeal ― in part because there’s so little time left in the Senate’s current session.
But he said he’d have a better shot if Contreras hadn’t thrown out the case on procedural grounds.
“If this case were decided on the merits, I think there is a strong case that the Constitution does not allow the Senate to just ignore a Supreme Court nominee,” Michel said in an email.
The legal reality is much harsher: The Constitution says nothing about an affirmative Senate duty to act on any nominee from the president. It leaves it up to them to fight it out.