Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, December 22, 2016

Private attorney makes last ditch effort on behalf of Merrick Garland

Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, was nominated as the next U.S. Supreme Court Justice on March 16, 2016, upon the vacancy left by Justice Scalia's death. His nomination is the longest pending in history. But Judge Garland will not become a Supreme Court Justice.


Judge Garland had the misfortune of being nominated during one of the most rancorous election seasons ever. In addition to the heavy partisanship permeating the presidential campaign, the seat Garland would have filled was previously held by one of the strongest conservative voices the Court has ever seen, and Judge Garland appears to be more of a moderate - not a cookie cutter replacement in other words. Add to that the fact that the Senate, who must do the work of confirming the nominee, was held by the party that did not do the nominating. All of this made for the perfect negative storm which Judge Garland must have anticipated many months ago. 

When he made his speech following President Obama's nomination, Judge Garland displayed great humility and gratitude for the nomination. If he is also a wise judge, he knew then that his rise to the High Court was a long shot, through no fault of his own. The times did not cooperate for him. 

But recently a private lawyer in New Mexico tried to make it happen. Steven Michel made application to the Supreme Court asking for injunctive relief in the form of an order to the Senate to vote on Garland's nomination. Chief Justice Roberts, circuit justice for the D.C. Circuit, denied the application without referral to the Court. Michel was not surprised:

"Asking Chief Justice Roberts to require a Senate vote on the Garland nomination was an extraordinary request. So although I’m disappointed by his refusal, I’m not surprised," Michel said Monday. "The Senate’s judicial confirmation process is broken. I hope it can be fixed before too long, because our democracy depends on it."

There are no mandates regarding the confirmation process and the regular course of action can vary depending on Senate leadership. The Supreme Court continued to function with the vacancy, but the result was probably not ideal in many people's eyes. The Court split in some decisions leaving the ruling of the lower courts in place, but did not provide binding pronouncements on the law. This is somewhat unsettling, because there is a desire to have stability within the law.

The vacancy will soon be filled however. The President-Elect now has the great power to insert his choice of nominee, and that person will likely resemble Justice Scalia much more than did Judge Garland.

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