Anybody remember Merrick Garland? Yeah… he was that guy nominated by Barack Obama to fill the empty Supreme Court seat. You may have thought that the issue was dead in the water, particularly with a Republican president on the way in, but there was actually a court case pending which sought to force the Senate to vote on his confirmation. As it turns out, that was met with the same level of success as Hillary Clinton’s presidential bid. (Washington Post)
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.”
As is so often the case in politically motivated lawsuits, the Judge – Rudolph Contreras – didn’t dismiss the suit brought by Steve Michel because it was an improper request, unconstitutional or just plain stupid. It was shot down because Michel didn’t have standing to make the claim of having suffered an individualized injury from the Senate’s refusal to confirm the nominee. In the end, the judge saw it as yet another political spat which didn’t belong on the courts.
“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.
This suit never had a ghost of a chance from the beginning. The only way Garland was going to make it to Scalia’s seat was if the Senate confirmed him and the GOP made it clear from the beginning that there would be no action taken until after the election. Now we’ve reached the point where even if the Senate did agree to give him a look, the confirmation hearings alone would eat up far more of the calendar than the lame ducks have left this year.
The better question is who they will be considering in January as one of their first orders of business. The Daily Caller recently narrowed it down to five people who are likely to be the favorites. The names include Raymond Kethledge, William Pryor, Don Willett, Diane Sykes and Ted Cruz. Going by some of Trump’s previous comments on the subject it won’t be surprising if Willett is the pick, but Sykes and Cruz are both highly interesting. Sykes sits on the Seventh Circuit bench, carrying a reputation for strict originalism and not being too tightly caught up in stare decisis as binding her course of action. Cruz would, of course, drive the Democrats insane and likely prompt an immediate need to nuke the filibuster, but holds a few advantages for Trump. As some of us were discussing on social media the day his name popped up anew, his qualifications on paper for such an appointment are pretty much beyond question. But at the same time, he might carry another advantage for Trump. If the first four years are rocky, Cruz could turn out to be a thorn in Trump’s side and a possible primary challenger in 2020. Dumping him onto the Supreme Court could solve a couple of problems with one stroke of the pen.
Still, as with the rest of the appointments to be made, I’ll take Trump at his word. He’s the only one who knows who the finalists really are and we’re just playing parlor games until he comes out and makes it official.