Long shot efforts to wrangle a seat for U.S. Supreme Court nominee Merrick Garland abound but are gaining little traction in the twilight of President Obama’s administration.
While there have been some signals in recent days that the president is throwing in the towel on Garland, a number of White House petitions and at least one lawsuit have sought to bring the jurist to the bench to replace the late Justice Antonin Scalia on the high court.
All rely on somewhat shaky legal ground.
A New Mexico lawyer, Steven Michel, filed a lengthy emergency application with Chief Justice John Roberts last week asking the court for an injunction to compel Senate Majority Leader Mitch McConnell, a Republican, to schedule a vote on Garland before Obama leaves the White House in January.
Michel argued the Senate’s refusal to hold hearings on Garland, who was nominated in March, strips New Mexico’s senators of their “one vote” under the 17th Amendment in deciding whether to consent to Garland’s appointment.
Roberts denied Michel’s request on Monday.
Going past the courts, at least two separate We the People petitions asking Obama to immediately appoint Garland to the bench have garnered the more than the 100,000 signatures this month needed for a response from the Administration. The petitions argue the Senate has waived its right to confirm or reject the controversial appointment by refusing to schedule hearings.
In the high court’s history, just one justice, William J. Brennan, Jr., came to the bench by a direct recess appointment by President Dwight D. Eisenhower in 1956, though the Senate later confirmed him. Since then, the Supreme Court in 2014 limited the power of the White House to make recess appointments in the case of NLRB v. Noel Canning.
Speaking of such appointments, yet another petition is urging President Obama to appoint Garland to the bench in the brief interlude on Jan. 3 when the outgoing lawmakers of the 114th Congress leave and before the new ones are seated, when a Democratic majority would be in control of the Senate. As noted by the liberal magazine The New Republic, such an appointment is theoretically possible and would last until December 2017, the end of the first session of the 115th Congress.
The National Rifle Association contends Garland is unacceptable and is the “most anti-gun nominee in recent history” and has lobbied extensively to block his appointment while the subject of filling seats on the bench popped up repeatedly in the Presidental election campaign.
As for Garland, who had recused himself while he was a nominee to the Supreme Court from taking cases in his current role as chief judge of the Court of Appeals for the District of Columbia Circuit, the National Law Review reports he is scheduled to appear on the court’s calendar once again starting Jan. 18.