Given the fact of the Kavanaugh nomination is being given a hearing in the Senate that is scheduled to begin on September 4th and given the failure of the Senate to hold any hearings on the Garland nomination ostensibly due to the imminence of the presidential election would it be possible to get a federal court to issue an injunction forbidding any vote on the Supreme Court nomination until after the incoming Senators and Representatives take their seats?
Assuming there was some sort of violation in refusing to hold hearings on Garland (which I do not think any court would conclude) the remedy would not be an injunction forbidding a hearing and vote on Kavanaugh.
I can imagine such an argument. I cannot imagine any court accepting it.
Plus, it raises all sorts of separation of powers arguments that courts like to avoid.
It comes from the constitution:
So, the senate gets to make its own rules about this stuff. Courts have no say in it.
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution”
Why is this section (Article III) not equally applicable?
There’s no case here.
Congress gets to set the rules of its proceedings. Interviewing candidates for office is one of those proceedings.
In addition, who would have standing to sue to force the Senate to delay hearings/vote on the nomination? The clause of the Constitution that was quoted requires there to be a controversy, in which someone has a stake in the outcome.
Some random dude sued to force the Senate to take up the nomination of Garland, and that case went nowhere. Suing to do the opposite seems equally preposterous.
Also don’t forget “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
If the Courts annoy Congress, Congress has the power to take away their jurisdiction. This is specified for the Supreme Court in the above clause. It is implicit for lower courts because of the power of Congress to create and destroy them. For example, Tax Court cannot hear treason cases.
I don’t even understand the argument. Because one time before you did not vote on a nominee, you can’t vote now?
If it could be so easily done, it would have been in times where Congress was fully controlled by one party, so that Congress could pass whatever it wanted, declaring it not subject to judicial review. Congress has never done so.
No such law could pass today, where there is no supermajority in the Senate. So removal of jurisdiction is not a serious threat to the Court’s power.
The Court does arguably have the ability to enforce a remedy on the legislature. It has been done before, albeit in state cases, so I don’t see why it couldn’t. However, this has, to my knowledge, not been tested.
However, this is hardly a slam dunk case. I personally believe this decision violated the constitution, which says they shall advise. But there is a counterargument, and those who put the most stock in exactly what the law says are generally conservative.
Furthermore, the only possible result I could see is to force them to actually have a hearing about Garland. So what’s the practical result would be that they vote against him and move on to Kavanaugh. So who would be willing to bring up a case that won’t actually get remedied?
It bothers some of us that the clear intent and wording of the Constitution was not followed, but the only remedy we really have is to try and get the people out of office for doing what they did.
The argument is more like, “If the Senate shouldn’t vote on Supreme Court nominations shortly before an election, then you should sleep in the bed as you’ve made it.”
I don’t agree with the argument, but it isn’t hard to understand.
The relevant part of the Constitution is in Article II which refers to the president. It reads:
It does not state “shall advise”.
The courts ordering the Senate to take up a particular nomination would present a clash of powers. Since the Constitution, in Article I, Section 5, Clause 2, provides “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” it would be up to the Senate to determine its own rules for how to handle a nomination passed to it by the president.
But the court could decide that the complete denial of judicial review violates some due process of law rights enshrined in the constitution - i.e. maybe habeus corpus trumps congress’s prerogative to set review limits. Maybe, That at least is within their ability to decide, which law takes precedence.
I tend to agree, but the problem is that in any jurisdiction stripping statute, there is the potential that Congress has taken action to violate a Constitutional right. If the Court is permitted to look at a right being violated, then jurisdiction has not been stripped.