Case for Senate suing McConnell, getting an injunction and relief for the deliberate sabotage of a sitting US President and government business
We believe that the Senate Judiciary specifically and any member of the US Senate could have standing in a case regarding the 2016 Obstruction of Justice regarding the Garland nomination as well as the pattern of a record 79 filibusters of federal judges. Not only was this an obstruction of the legal proceedings mandated by the Constitution and the Judiciary act of 1789- it was literally an obstruction of the entire Justice system, writ large. The harm- to the judiciary itself, yet and still, there are 90 federal court vacancies, which means cases take longer, innocent people in jail longer, more cases that aren’t being completed or even taken up…. so McConnell and Co could gain a political advantage that violates separation of powers.
While the Senate, certainly has the power to reject Presidential nominees, neither Mitch McConnell, nor Charles Grassley are the Senate. No vote was had, which is the only way of determining the will of the Senate. Neither have pocket veto power over Presidential nominees- and admitted they were doing so to prevent the President from selecting a Supreme Court Justice, as was his power, and his duty.
The clock, which would run out normally, stopped at the same time Mitch McConnell launched his intention to obstruct government hearings and his refusal to acknowledge a twice elected President.
The cloud of illegitimacy that hangs over every 5-4 decision of the term, and the honor, and respectability of the Supreme Court as an institution, and the United States as a whole is tarnished, and disillusions the public of the United States as to the possibility of Justice.
Further, to allow this sort of partisan refusal to do Constitutionally mandated duties because they do not like or are in a different party, rather than for real, material concerns about peoples ability to do their jobs, is a dangerous precedent to set. It also means that any time the President is of a different party, the Senate can just hold up nominations. If Congress passes a law, the President doesn’t like, he or she could then direct the agencies not to obey.
The proper analogy of tainted processes is to see what happens when police or prosecutors are found to have been planting or withholding evidence- any process associated with that person, is subject to be overturned. Illegal actions cannot be rewarded by influence over the Justice processs
The Constitution does not say, for example, that ALL Electoral College votes need to be counted. Nor does it need to. There are some things which are assumed to be understood. John Marshall (1st Chief Justice of the Supreme Court) talks about this- take the responsibility to establish post offices. The Constitution does not say to deliver mail, nor to enforce mail theft laws. Because some things follow.
Pros of taking Action
There could be upwards of three major benefits-
- An injunction on Kavanaugh hearings is a natural ask, which means that Supreme Court picks could be pushed until after November or whenever.
- Using a writ of mandamus it is un unprecedented, but possible for the Courts to force the Senate to hold hearings on the Garland nomination. The recourse after that would be tricky, but it is clear the actions were taken with the specific anti democratic, completely corrupt, and illegal intent to prevent an ideological vote shift on the courts.
- If it were found to be a major violation, and Judge Gorsuch would need to be removed from the bench and 5-4 decisions of the last term would have to be nullified. It seems extreme, but it is not. The analogy is the police or prosecutors found to be falsifying evidence, and the case exonerations of prior based on their misconduct. This illegal action was done with express intent of shifting the balance of power back to a Conservative base. Corrupt actions cannot be allowed to achieve their result.
We feel as though the chances are good- Judges are people, people who like nice, orderly processes- and this directly affects them, case loads are piling up. Liberal or Conservative- technically speaking this violation is far worse if you honestly claim originalist or constructionist, the latter of which we do.
The relevant statutes for cause of action are all criminal- 18 USC 241, 242, and 18 USC 1505, and other related obstruction of justice statutes- so it may need to be a suit in equity to allow the court leeway in crafting civil relief.
From United States v Classic
Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise “of any right or privilege secured to him by the Constitution or laws of the United States.” Section 20 makes it a penal offense for anyone who, acting “under color of any law,” “willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, and immunities secured and 310*310 protected by the Constitution and laws of the United States.”
18 USC 1505 Obstruction of Justice
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
- In 2016- Mitch McConnell and Charles Grassley violated the Constitution, refusing, on behalf of the entire Senate, to engage in a Constitutionally mandated duty; to provide Advice and Consent to President Obama’s Supreme Court pick. 2 men vetoed the President of the United States, and blocked proceedings in a manner that has never before occurred in the 200+ year history of Supreme Court nominations. The Senate did not provide the necessary advice and consent- they can only do so with a vote. Instead the schedulers of hearings decided that they would hold no hearings, and usurped the Powers of both the Presidency and the entire Senate, at once. Their blockage of the system still has left the US district courts empty.
2. Mitch McConnell admits he did it to preserve a Republican advantage (video here) They and several other Republican Senators promised, publicly to block any HRC nomination for 4 years.
In addition, there were 79 judgeships that were filibustered- more than the entire history of the United States- this is a pattern of behavior, done to subvert the democratic process, and the Constitution
Contrary to popular belief; the reason this was so unprecedented is that it has been litigated, and case law accumulated- the Supreme Court has been clear, over 6+ cases spanning 150 years- Congress has very limited powers to interrupt Appointments, and rejections are supposed to be for clearly unqualified or unsuitable candidates.
Myers v. United States
Chief Justice Taft stated qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.”
For the Originalists:
Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.”
If they met in secret to decide this, without a reporter- this would likely be an additional violation
Buckley v. Valeo, 424 U.S. 1 (1976)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Myers v. United States, 272 U.S. 52 (1926)
Morrison v. Olson, 487 U.S. 654 (1988)
Weiss v. United States, 510 U.S. 163 (1994)
Edmond v. United States, 520 U.S. 651 (1997)