"Obama should sue Senate over Supreme Court nominee" James Michael comment in The Times online legal brief

In the Times online legal brief Friday 8 April 2016 James Michael, Senior Associate Research Fellow, IALS comments on the refusal of Republican senators to consider the nomination of Merrick Garland to the US Supreme Court by President Obama and describes the possible outcome if the President goes to court to force the Senate to do its constitutional duty.

If Republican senators continue after the fortnight Easter recess to refuse to consider the nomination of Merrick Garland to the US Supreme Court, President Obama may go to court to force the Senate to do its constitutional duty.

Most Republican senators - including the judiciary committee chairman Chuck Grassley - have dug their toes in, maintaining that it should be left to the winner of this November's presidential election to appoint a replacement for Justice Antonin Scalia, who died in February.

But precedent could be on Obama's side. The 1969 Supreme Court case of Powell v McCormack ensued after the House of Representatives had excluded Adam Clayton Powell Jr from his seat, but without the two-thirds vote required by the constitution for expulsion. Powell went to the Supreme Court and the justices ruled that the House had acted unconstitutionally.

The court could make a "declaration" that it is the Senate's constitutional duty to vote on the nominee. A declaration was ordered in McCormack, when Chief Justice Earl Warren said: "Our system of government requires that federal courts on occasion interpret the constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such adjudication may cause cannot justify the courts' avoiding their constitutional responsibility."

Obama would go to the US District Court for the District of Columbia. In another case already before that court, the House of Representatives is suing Obama, alleging that he acted unconstitutionally in funding his new healthcare programme by an executive order.

Obama's case against the Senate would then go to the US Circuit Court of Appeals for the District of Columbia, and then on to the Supreme Court as it now is, with eight justices. The four conservative justices described as "originalist" could find that the language of the constitution is clear about the duty of the Senate. There is also the court's self-interest - to continue functioning smoothly it really needs another justice as soon as possible.

If the court split 4-4, the ruling of the DC Circuit Court of Appeals would stand. In McCormack, the court ruled against the House of Representatives 7-1. Potter Stewart dissented, but only on the ground that the case was moot because Powell had been re-elected and seated in the House. One justice, Abe Fortas, did not take part in the case because of financial problems that would lead to his resignation shortly after.

But if Obama lost, there would be two defeats: his nominee would not be considered, leaving a vacancy for the incoming president to fill. And part of Obama's presidential legacy would be a judicial precedent that future presidents could be stopped from making Supreme Court appointments in their last year of office.

See James Michael's full comment at: http://thetimes.co.uk/thebrief/signup/archive.html