Supreme Court nominee Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, walks to Sen. Patrick Leahy (D-VT)’s office at the Russell Senate Office Building on March 17, 2016. (Diego M. Radzinschi)
President Barack Obama may be giving up on U.S. Senate confirmation of Chief Judge Merrick Garland, his nominee to the U.S. Supreme Court, but a New Mexico lawyer is making one last appeal—this time to the high court itself.
Steven Michel of Santa Fe on Thursday filed an emergency application for an injunction that would require Senate Majority Leader Mitch McConnell to schedule a vote on the Garland nomination before Obama’s term ends on Jan. 20.
Michel fought unsuccessfully in the lower courts. He argued that Senate Republicans’ obstruction of the nomination “has deprived me of my right as a voter, under the 17th Amendment to have my elected senators participate with ‘one vote’ in deciding” whether to approve the nomination.
A federal district court on Nov. 17 dismissed Michel’s complaint for lack of standing and denied a motion for a preliminary injunction. On Dec. 7, the U.S. Court of Appeals for the D.C. Circuit upheld the dismissal of Michel’s suit.
After the D.C. Circuit decision, Michel said decided to go as far as he could with his challenge. His application will be submitted to Chief Justice John Roberts Jr., the justice who oversees the D.C. Circuit. The All Writs Act, Michel contends, encompasses his request for an emergency injunction pending appellate review.
“Unless this court grants the injunctive relief I request, I will have been irreparably harmed because the senators I elected, and who are to represent me in the Senate, will have been denied a vote in the required Senate function of deciding whether to confirm Judge Garland,” Michel wrote.
Michel concedes there is case law holding that courts may not issue injunctive relief in the form of a writ of mandamus against Congress. But, he contends, “the issue is unsettled and my position is that the current situation warrants that form of extraordinary relief.”
In Michel v. McConnell, he poses two questions: Does the Constitution require the Senate to vote in the nomination and appointment of Supreme Court justices? And the second question: If the Senate is required to vote on Supreme Court nominations, and a small group of senators prevent that vote, does that diminish the effectiveness of my vote for senators who were blocked from casting their constitutional “one vote” on the Garland nomination?
Garland was nominated on March 16. Senate Republican leaders announced one hour after the death of Justice Antonin Scalia, on Feb. 13, that there would be no hearings or vote on any nomination by Obama to fill the vacancy.
Republican leaders said then that the winner of the White House in November would fill Scalia’s seat. President-elect Donald Trump has a list of 21 candidates, and he’s expected around the time of the inauguration to announce his pick. CNN reported Thursday that Judge Diane Sykes of the Seventh Circuit and William Pryor of the Eleventh Circuit are among the top contenders.
Obama on Wednesday night, speaking at the White House’s Hanukkah party, seemed resigned to the acceptance that Garland would return to service on the D.C. Circuit, where he’s served since 1997.
“We’ve got one of the country’s finest jurists, who I happen to have nominated to the Supreme Court and who’s going to continue to serve our country with distinction as the chief judge on the D.C. Circuit,” Obama said in noting guests, including Garland, at the Hanukkah party. Justices Ruth Bader Ginsburg and Stephen Breyer also attended the event.
Garland was also spotted at the U.S. Justice Department’s holiday party Wednesday night, according to Politico. Garland previously served in top posts at Main Justice under President Bill Clinton.
Michel’s application is posted below.