Since getting a nod for the Supreme Court ages ago, Merrick Garland hasn’t been doing any work as a judge, sitting out cases that he may have later needed to hear as a justice.
That doesn’t mean he didn’t at least see something the U.S. Court of Appeals for the D.C. Circuit did on Wednesday. A three-judge panel of the court, where he is chief judge, shot down a long-shot appeal that aimed to get the Senate to hold a confirmation vote for his stalled nomination.
There was no chance Garland’s colleagues would even attempt to go there — the separation of powers is still a thing. But the judges did what they normally do whenever a litigant ― in this case, a New Mexico lawyer ― pays the filing fee and tries to make a case that he thinks has merit.
Except the D.C. Circuit didn’t reach the merits, and instead upheld a November ruling that the lawyer, Steven Michel, had no right to sue Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), the top two Republicans responsible for the upper chamber’s “advise and consent” duty for Supreme Court nominees.
“Rather than being concrete and particularized,” the judges wrote Wednesday in their dismissal order, “appellant’s alleged injury ― the diminution of the effectiveness of his votes for Senators ― is wholly abstract is widely dispersed.”
They even cited an opinion by the late Justice Antonin Scalia to underscore the point that a citizen can’t just sue to twist a senator’s arm to do his job. The system leaves it up to the political branches to fight this fight out.
One upshot of all of this is that at least Senate lawyers got to do some lawyering and filed court papers responding to this lawsuit ― which some might say is far more than McConnell and Grassley have done to get Garland a hearing and a vote. Thus far, he remains the longest-waiting nominee in history.
With his chances all but vanished since Donald Trump got elected, Garland’s only hope is a wild constitutional miracle in his favor. The chances of that ― which The Washington Post’s Aaron Blake calls “liberal fan fiction” ― are almost as good as that of his own court doing something for him.
With the current Congress about to adjourn until the next one, Garland’s nomination will soon return to the president. And Garland, quite likely, will also return to his day job. That lifetime appointment is still good.