That might be a good question for Merrick Garland. He chairs the US Court of Appeals for the DC circuit, and that means he sees a lot of government entities suing each other. As Barack Obama’s pick for the empty SCOTUS seat vacated by Nino Scalia, I am sure he could chime in with some good precedents. One thing seems clear; Mitch McConnell is not doing his job, as usual.
What Would Scalia Do?
And what of Antonin Scalia’s read on the question? After all, as a fervent originalist, the wording seems unambiguous. Scalia was also fervent about the separation of powers. So it could be argued that by denying the President his selection of Merrick Garland, they are in essence breaching the separation of powers. Sounds like grounds for a lawsuit.
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
What Would John Roberts Do?
And what would John Roberts and the Brethren do if suit was brought? Would this be considered judicial overreach? Or is Congress guilty of legislative overreach? It would be nice to poll the justices and ask them how they feel.
There is one undeniable truth in this question. Barack Obama has done his job in accordance with the laws set down in the Constitution. What say you, Mitch?