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Garland vote plea denied — maybe for the last time

December 19, 2016 by Lyle Denniston


The effort by a New Mexico lawyer to force a Senate vote on the Supreme Court nomination of Judge Merrick B. Garland may have reached its final point on Monday morning, as Chief Justice John G. Roberts, Jr., refused the request.  The Chief Justice acted without giving any reason, without sharing the issue with his colleagues, and even without seeking a response from the Senate.

Merrick_Garland 535Santa Fe attorney Steven S. Michel has now been denied a ruling on the merits of his challenge by federal courts at all three levels.  He does retain the option of asking another Justice or the full Court to consider his plea, but the likelihood is that — at the very most — that would result in a 4-to-4 tie, and it would take five votes to support any definitive action.

A few other challengers have attempted what Michel has, but none of those other efforts has reached the Supreme Court.

Although Michel sought to raise a number of basic constitutional issues in his legal maneuver over nearly four months, he did not get a ruling on any point except that he was found to lack the right to sue because he could not persuade any court that he would suffer any personal harm that the courts could mend — a requirement of the Constitution’s Article III controlling federal court powers.

The Garland nomination has been pending before the Senate since March 16, and that is the longest period of Senate inaction on any Supreme Court nomination in history.  Just after Justice Antonin Scalia died on February 13, more than a month before President Obama chose the Circuit Court judge as the replacement, Senate Republican leaders vowed that they would take no action until after the November election.  Later, the GOP leaders extended their resistance to any nominee by President Obama.  That level of resistance has never occurred in American history.

Although some Democratic senators publicly claimed that the vacancy on the Court had been stolen by the Republicans, the minority party in the Senate lacked any workable power to do anything about it.  The Democratic resentment may make it more difficult for a nominee by President-elect Donald Trump to get confirmed.

The Court has been functioning, not altogether efficiently, with eight members for the past 10 months.  A ninth Justice is not likely to join the Court until March, at the earliest.

Judge Garland has a lifetime appointment as a federal appeals court judge.  He has not been performing those duties since his nomination to the Supreme Court, but presumably will return to them in the near future.  Once the Senate has adjourned for the year, the Garland nomination will be returned to the Obama White House.

There appears to be no way that President Obama could force Senate action before he leaves office at noon on January 20.  He has shown no desire to try.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on, where this story first appeared.

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