No. MGQE Sin the @upteme QEnurt at the @niteh ?tates STEVEN S. MICHEL, pro 59 Applicant, V. ADDISON MITCHELL MCCONNELL, IR., United States Senator, CHARLES ERNEST GRASSLEY, United States Senator and UNITED STATES SENATE, Respondents. EMERGENCY APPLICATION FOR INIUNCTION PENDING APPELLATE REVIEW Directed to the Honorable John G. Roberts, Jr. Chief justice of the United States and Circuit Justice for the District of Columbia Circuit Steven S. Michel, pro 58 New Mexico State Bar 1809 2025 Senda de Andres Santa Fe, New Mexico 87501 (505) 690-8733 stevensmichel@comcast.net Dated: December 15, 2016 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES JURISDICTION 3 BACKGROUND AND PROCEDURAL HISTORY 6 ARGUMENT 9 1] APPLICANT FACES CRITICAL AND EXIGENT CIRCUMSTANCES 9 2] THE LEGAL RIGHTS OF APPLICANT ARE INDISPUTABLY CLEAR 10 a] Applicant has standing 11 1. When the President nominates a person to fill a Supreme Court vacancy, the Senate as a body must, within a reasonable time, vote to determine whether to provide advice and consent 12 2. The lower court dismissals were in error. In blocking consideration ofjudge Garland?s nomination, Respondents denied New Mexico senators their 17th Amendment ?one vote? in the confirmation process, and consequently injured Applicant by diminishing the effectiveness of his vote for senators relative to voters in states whose senators blocked Senate action 18 b] This case is justiciable, and the claims made do not impinge on either the ?Speech or Debate Clause? of the US. Constitution or the ?Political Question Doctrine.? 21 3] INJUNCTIVE RELIEF WILL AID THIS APPELLATE 4) A BALANCING OF THE EQUITIES IN FAVOR OF AN INJUNCTION a] An injunction will not harm other parties 26 b] An injunction serves the public interest 28 CONCLUSION 33 EXHIBIT 1 Letter from 11 senators to Senator Mitchell McConnell, 2/23/16 EXHIBIT 2 US. Senate compilation of action on all Supreme Court nominees EXHIBIT 3 Order and Memorandum Opinion - Granting Defendants?Motion to Dismiss, Denying Plor'ntr??s Motion for a Preliminary Injunction, 11/17/16, DDC #16? cv-1729 EXHIBIT 4 - Order, 12/7/16 CADC #16-5340 TABLE OF AUTHORITIES CASES: American HospitalAss?n v. Barwell, 812 F.3d 183 Cir. 2016] 5 Baker v. Carr, 369 21,23 Bond v. United States, 564 U.S. 211, 222 (2014] 32 Clinton v. City ofNew York, 524 U.S. 417 [1998) 19 Coleman v. Miller, 307 U.S. 433 [1939) 9 Common Cause v. Biden, 748 F.3d 1280 Cir. 2014] 23 Conn. Coalition forjastice in Educ. Funding, Inc. v. Bell, 295 Conn. 240,255, 990 A.2d206 [2010] 24 DepartmentofCommerce et al. v. United States House ofRepresentatives, et at, 525 U.S. 316 [1999) 10 Dollar General Corp. v. Mississippi Band ofChoctaw Indians, No. 13-496 [2016] 31 Edmond v. United States, 520 U.S. 651(1997) 13,14 Federal Elections Commission v. Akins, 524 U.S. 11 (1998] 19, 20 Federal Trade Commission v. Dean Foods Co., 384 U.S. 597, 603 [1966) 25 Free Enterprise Fund 12. Accounting Oversight Board, 537 F.3d 667, 714 Cir. 2008) [reversed at 130 U.S. 477 (2010]) 30, 32 Friedrichs v. California Teachers Association, No. 14-915 (2016) 31 Goldwater v. Carter, 444 U.S. 996 [1979] 24 Gravel V. United States, 408 U.S. 606, 625 [1972] 22 Hawkins 12. Community Bank ofRaymore, No. 14?520 [2016] 31 In re: Aiken County, et al., 725 F.3d 255 Circuit 2013] Liberation News Service v. Eastiand, 426 F.2d 1379 [2d Circuit 1970] 4 Lujan v. Defenders of Wildlife, 504 U.S. 555 [1992) 19, 20 Marbary Madison, 5 US. 137 [1803) 5, 13 Metro. Wash. Airports Aath. Citizens for Abatemen of Aircraft Noise, In c. 501 US. 252 [1991) 30 Manfort v. State, 723 407, 413 [End 2000) 24 Morrison v. Olson, 487 0.8. 654, 704?5 [1988) 28 Not? Labor Reiations Bd. Noe! Canning, 134 S. Ct. 2550, 2574 [2014) Passim Nixon 12. United States, 506 0.8. 224, 253 [1993) 24 Poweil v. McCormaok, 395 US. 486 [1969) 21, 21?23, 27 Public Citizen v. United States Department ofjustice, 491 US. 440 [1989) 28 Pye v. United States, 269 459 [4th Cir. 2001) 20 Raines V. Byrd, 521 11.3. 811 [1997) 19 Stern v. Marshaii, 564 US. 462, 483 [2011) 24 United States v. Bailin, 144 US. 1 [1892) 24 United States v. Helstoski, 442 US. 477 [1979) 22 United States v. Munoz~FIores, 495 US. 385, 393-5 [1990) 24 United States v. Texas, No.15-673 [2016) 31 US. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 [1995) 10 Worth 1). Seidin, 422 US 490, 501 [1975) 20 Youngstown Sheet& Tube Co. v. Sawyer, 343 0.8. 579 [1952) 24 Zivotofsky ex rel. Zivotofsky v. Ciinton, 132 S. Ct. 1421, 1427 [2012) 24 CONSTITUTION, STATUTES AND RULES: U.S. ARTICLE I, 6 22 US. CONSTITUTION, ARTICLE 11, 2 Passim U.S. CONSTITUTION, AMENDMENT XVII Passim 28 U.S.C. 1 28 28 4 28 U.S.C. 1291 4 28 U.S.C. 1331 3 28 U.S.C. 1651 3, 4, 25 28 U.S.C. 2201 3 28 U.S.C. 2202 3 STANDING RULES OE THE SENATE, ROLES XXV, 1 13TH CONGRESS, 1ST SESSION. DOCUMENT 1 13-18. REVISED To JANUARY 24, 2013. US. GOVERNMENT PRINTING OFFICE. NOVEMBER 4, 20 13 6, 9, 27 OTHER: Aisch, Gregor; Keller, Josh; Lai, KK. Rebecca and Yourish, Karen: ?Supreme Court Nominees Considered in Election Years Are Usually Confirmed,? The New York Times, updated 3/16/16 3, 7, 17 American Bar Association, Status Of Federal Judicial Vacancies, Nominations and Confirmations: 103rd 113th Congress (1993?2014]. vacnom sconsauthcheckdam.odf 31 American Bar Association, ABA Washington Letter, June 2016. affairs periodicals/washingtonl 7 Cushman, John H., Jr.: ?Senate imperils Judicial System, Rehnquist Says,? New York Times, January 1, 1998, A1 18 DeBonis, Mike and Kane, Paul: ?Supreme Court is an issue again after McCain suggests Clinton blockade,? The Washington Post, October 17, 2016, 29 Dinah, Stephen and Boyer, Dave: ?Republicans rule out replacing Antonin Scalia until new president is elected.? The Washington Times, February 13, 2016 6 Fox, Lauren: November 2, 201.6, 29 Hamilton, Madison, and Jay; The Federalist [1788], Nos.14, 15, 24 McConnell and Grassley: ?McConnell and Grassley: Democrats shouldn?t rob voters of chance to replace Scalia.? Op-Ed. The Washington Post, February 18, 2016 6 McConnell, Senator Mitchell: Posting to Facebook page: 6 Obama, President Barack: ?Merrick Garland Deserves a Vote - For Democracy?s Sake.? Op- Ed. The Wall Streetjourna}, July 17, 2016 29 Renzin, Lee: "Advice, Consent, and Senate Inaction Is Judiciai Resolution Possible?? N.Y.U. Law Review, Volume 73:1739, Nov.1998 26, 30 Sutherland Statutory Construction, 45:2 4 United States Senate Website 9 United States Courts website (?Judicial Emergencies? listed under Judicial Vacancies]: 3 1 vi To the Honorable John G. Roberts, Jr., ChiefJustice of the United States and Circuit Justice for the District of Columbia Circuit: INTRODUCTION Judge Merrick Garland?s nomination to the United States Supreme Court has been pending without Senate action since March 16, 2016, far longer than any other Supreme Court nominee in history. For the past ten months Respondents, Senate leadership, have blocked a Senate vote on that nomination and have stated their intention to continue to do so for the remainder of President Obama?s term. This obstruction has deprived me of my right as a voter, under the 17th Amendment, to have my elected senators participate with ?one vote? in deciding whether to consent to Merrick Garland?s appointment. This contrasts starkly with the voting strength exercised by the handful ofsenators that have, so far successfully, blocked Senate action. The conduct of Respondents has diminished the effectiveness of my vote for senators an injury long recognized as sufficient to provide Article standing. On January 20, 2017, President Barack Obama?s second term will end, and the nomination ofJudge Garland wiil have been defacto rejected without any Senate consideration or vote. Unless this Court grants the injunctive reliefi request, 1 will have been irreparabiy harmed because the senators I elected, and who are to represent me in the Senate, will have been denied a vote in the required Senate function of deciding whether to confirm Judge Garland. The facts involved in this action have been attested to in the courts below and are undisputed, and the issues are straightforward: 1) Does the Constitution require the Senate to participate, by a vote of the full body, in the nomination and appointment of Supreme Court justices, specifically Judge Garland? 2) Ifthe Senate must vote on Supreme Court nominations, and a small group of senators prevents that vote, defacto rejecting Judge Garland?s appointment, does that diminish the effectiveness of my vote for senators who were blocked from casting their constitutional ?one vote? on the Garland nomination? I believe the answer to both these two questions is ?yes,? and that therefore the injunctive reliefl request by this Emergency Application should be granted. in other words, when the entire Senate votes, my senators must be provided ?one vote.? And in the specific situation of Supreme Court nominations, the Constitution requires that the entire Senate must vote. The relief i am seeking is an injunction pending appellate review that would require Respondents to take those actions, prior to the end of President Barack Obama?s second term on January 20, 2017, necessary for the entire Senate to vote on whether to provide advice and consent for the appointment ofJudge Merrick Garland to the Supreme Court. An immediate injunction is needed because otherwise, on January 20, 2017, President Barack Obama?s second and final term will end, the nomination ofjudge Garland will have been rejected by default, and I will have been forever deprived of my right as a voter to Senate representation on this very important nomination. My specific request is that the Court issue an injunction requiring: 1] Respondent McConnell to schedule a vote of the full Senate, before the end of President Obama?s term on January 20, 2017, on whether to provide advice and consent for the nomination ofJudge Merrick Garland to the United States Supreme Court, 2] Respondent Grassley to hold any necessary Judiciary Committee hearings prior to the vote ofthe full Senate, 3] Respondent US. Senate, as a body, to vote before January 20, 2017 on whether it will provide its advice and consent to the nomination ofludge Garland to the United States Supreme Court, and 4] Respondents to provide the Court and Applicant with a schedule to accomplish the above three requirements. The reliefl am requesting should provide sufficient time, approximately one month, for the Senate to vote. Historically, the average time for a Supreme Court nominee to be either confirmed, rejected or withdrawn has been 25 days.1 JURISDICTION On August 25, 2016, I filed a Petition (aka Complaint] in the DC. federal district court seeking declaratory and injunctive relief that would cause the Senate to vote on the pending nomination ofludge Merrick Garland to the United States Supreme Court.2 The reliefi requested was pursuant to 28 U.S.C. ?2201 [declaratory judgments], 28 U.S.C. ?2202 [further relief], 28 U.S.C. ?1331 [federal question) and 28 U.S.C. ?1651 [all writs). On November 17, 2016, the district court dismissed the Petition for lack of Article standing and denied a pending motion for preliminary injunction. The district court?s Order and Memorandum Opinion are Exhibit 3 to this Application. The next day, on November 18, 2016, I filed a Notice oprpeaI to the US. Court of Appeals for the DC. Circuit, and on November 22, 2016 i filed an Emergency Motionfor 1 ?Supreme Court Nominees Considered in Election Years Are Usually Confirmed,? New York Times, by Aisch, Keiier, Lai and Yourish, 3/16/16 2 BBC Case No.16-cv-01729nRC Injunction Pending Appeal.3 That appellate court had jurisdiction pursuant to 28 ?1291. On December 7, 2016, the appellate court granted Defendants? [Respondents] motion for summary affirmance ofthe district court dismissal [Exhibit This Court has jurisdiction to consider this Emergency Application for Injunction Pending Appellate Review pursuant to the All Writs Act, 28 U.S.C. ?1651, and 28 U.S.C. ?1254. 28 U.S.C. ?1651(a] provides that the ?Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid oftheir reSpective jurisdictions and agreeable to the usages and principles of law.? Aside from assuring that my injury does not become irreparable while appellate review proceeds, an injunction will also aid in the appellate jurisdiction of this Court by protecting the Viability and strength of the Court from Respondents? obstruction ofan orderly replacement ofjustices. The plain language of?1651 encompasses such a broad reading.4 The injunction I seek by this Emergency Application would have the same effect, with respect to the nomination ofjudge Garland, as a writ ofmandamus. While there is some case law holding that courts may not issue injunctive reliefin the form ofa writ ofmandamus against Congress,5 the issue is unsettled and my position is that the current situation warrants that form of extraordinary relief. in the past, federal courts have issued mandamus against other branches of government when those branches neglected a clear legal duty. For example, in In re Aiken County, et al, the DC. Circuit Court oprpeals held, in granting a petition for a writ ofmandamus against the Executive Branch, that: 3 CADC Case No. 16?5340 4 See, ?45:2 Sutherland Statutory Construction 5 See, eg. Liberation News Service 12. Eastland, 426 F.2d 1379, 1384? [2d Circuit 1970] 4 This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered ifwe were to allow executive and independent agencies to disregard federal law in the manner asserted in this Similarly, in American HospitaIAss?n v. Burwell the DC. Circuit discussed the use and availability of mandamus relief, and the circumstances and equities under which it would be granted: In the end, although courts must respect the political branches and hesitate to intrude on their resolution of conflicting priorities, our ultimate obligation is to enforce the law as Congress has written it. Given this, and given the unique circumstances of this case, the clarity ofthe statutory duty will likely will require issuance of the writ if the political branches have failed to make meaningful progress within a reasonable period of time say, the close of the next appropriations cycle. Cf. In re 7 If enforcement of a statute can warrant mandamus, enforcement ofmy constitutional rights as a voter, and the duty to protect the structural safeguards ofthe federal government, is even more compelling. In Marbury v. Madison,8 Justice Marshall described the history and use ofwrits of mandamus, and wrote: [T]he case of The King v. Baker et of. states with much precision and explicitness the cases in which the writ may be ?this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.? Marbary at 168?9. The circumstances described injustice Marshall?s opinion apply to the current situation and weigh in favor of the Court exercising its authority to provide a remedy to preserve ?justice and good government.? 6 In In re: Aiken County, at al., 725 F.3d 255Circuit 2013), the U. S. Court oprpeals? D. issued a WI it ofmandarnus against the executive b1 anch, specifically the Nuclear regulatory Commission, compeiling it to proceed with a legally mandated licensing pi ocess. 7American HospitalAssn Barwell, 812 3d 183 (D. C. Cir. 2016) 8 Marbary Madison, 5 5 BACKGROUND AND PROCEDURAL HISTORY on the nine-member US. Supreme Court. On that same day Senate Majority Leader McConnell issued a statement saying: ?this vacancy should not be filled until we have a new President.?9 On February 23, 2016, an eleven-member majority of the Senate Judiciary Committee signed a letter to Leader McConnell stating that ?this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017? [Exhibit 1). By Senate rules, the Judiciary Committee provides recommendations to the full Senate on judicial nominees before those nominees are considered and voted upon by the Senate.10 So, unless reversed, the February 231?d letter precludes Senate action, ever, on President Obama?s nominee, and divests the President of his appointment power for nearly one-fourth of his four-year term. On March 16, 2016, pursuant to Article Ii Section 2 ofthe US. Constitution, President Barack Obama nominated Merrick Garland, ChiefJudge of the US. Court of Appeals for the D.C. Circuit, to fill the Supreme Court vacancy caused by Justice Scalia?s death. /nostsf 1 02 1 14858 1 2571 66; see also ?Republicans rule out replacing Antonin Scalia until new president is elected,? by Stephen Dinan and Dave Boyer, The Washington Times, February 13, 2016; ?McConnell and Grassley: Democrats shouldn?t rob voters of chance to repiace Scalia? by Mitch McConneii and Chuck Grassley, The Washington Post, February 18, 2016. 10 The Senate Judiciary Committee recommends to the full body whether the Senate should advise and consent to a nomination by the President to fill a Supreme Court vacancy. Rule of the Standing Rule ofthe Senate (Rev. 2013] states: ?When nominations shall be made by the President ofthe United States to the Senate, they shali, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, ?Wiil the Senate advise and consent to this nomination?? On June 21, 2016, the American Bar Association Standing Committee on the Federal Judiciary, after a months?long investigation, unanimously gave Judge Garland its highest rating of ?Well-Qualified.? In its June of 2016 newsletter, following the release of its rating, ABA President Paulette Brown was quoted: it is now imperative that the Senate fulfills its constitutional responsibilities to consider and act on the Supreme Court nominee. While the Court continues to function, its 4-4 decisions do not establish precedent and leave open questions on issues that are vital to the lives of everyday people.11 As ofDecember 10, 2016, Judge Garland?s nomination had awaited Senate action for 270 days the longest time, by far, for such a nomination in US. history. Prior to Judge Garland, the average time for a Supreme Court nominee to be either confirmed, rejected or withdrawn was 25 days, and the longest confirmation process was 125 days, for Justice Brandeis in 1916.12 This Emergency Application stems from a Petition [aka Complaint) thatl filed D.C. district court on August 25, 2016 [Case In that district court case i maintained that I suffered a diminished effectiveness ofmy vote for United States senators as a result of Respondents? conduct. Specifically, i asserted that the Constitution requires the Senate to vote on Supreme Court nominations and that, because my senators had been prevented by other senators from casting their 17th Amendment ?one vote,? then my injury is actual, specific and not common to all citizens. To remedy that injury, I asked the court to declare that the full Senate must determine, within a reasonable time, whether to provide advice and consent to Judge affairs periodicais/washington 12 ?Supreme Court Nominees Considered in Election Years Are Usually Confirmed,? New York Times, by Aisch, Keller, Lai and Yourish, 3/16/16 7 Garland?s nomination and appointment. 1 also asked the court to require the Senate to make that determination. On November 17, 2016 the district court dismissed the case I filed, finding that i lacked standing to bring my claims because my injury was generalized, abstract and common to all citizens [Exhibit The Court made its findings without addressing the threshold question of whether the Senate must vote on Supreme Court nominees, which i believe is critical to determining the nature of the injury 1 have suffered. On November 18, 2016, i filed a Notice oprpeaI and on November 22, 2016 i asked the Court oprpeals for the District of Columbia Circuit to issue a preliminary injunction requiring the Senate to vote on Judge Garland?s nomination. On December 7, 2016, in Case No. 16-5340, the Court oprpeals granted summary affirmance of the district court dismissai [Exhibit The Defendants/Appellees in the lower court cases are the Respondents to this Application: Senator Mitchell McConnell, Senator Charles Grassley and the United States Senate.13 13 Applicant Steven S. Michei is a United States citizen, a resident of Santa Fe County in New Mexico, and a registered voter in that county of New Mexico. in recent elections Petitioner has voted for President Barack Obama and for the current US. Senators representing New Mexico, Thomas Udali and Martin Heinrich. Respondent Addison Mitcheii McConnell is a US. Senator from the State of Kentucky, and leader of the majority party in the Senate. As Majority Leader, Senator McConnell is able to schedule or refuse votes of the full Senate. He has refused to allow a vote on whether the Senate should provide advice and consent for the nomination ofJudge Garland. Respondent Charles Ernest Grassley is a US. Senator from the State of iowa, and Chairman of the Senate Judiciary Committee. Pursuant to the Standing Rules ofthe Senate, all judiciai nominations are referred to the Judiciary Committee, which then recommends to the full body whether it shouid provide advice and consent. As Chairman, Senator Grassley has refused to allow the Committee to consider the Supreme Court nomination ofJudge Gariand. Respondent United States Senate is the constitutional body ofthe United States government that must determine whether to provide advice and consent for nominees to the Supreme Court. The Senate has not, and by the statements ofa smali group of senators that control Senate activity, will not undertake this constitutional duty with respect to the nomination ofJudge Garland to the Supreme Court. ARGUMENT 1] APPLICANT FACES CRITICAL AND EXIGENT CIRCUMSTANCES it is important that this issue regarding Judge Garland?s nomination be resolved in a time frame that permits any remedy to be meaningful and useful. For that to happen, the full Senate must determine whether to provide advice and consent for the appointment of Judge Garland before January 20, 2017,14 the final day of President Obama?s presidency.15 After January 20th Judge Garland?s nomination will no longer be viable, and the effectiveness of my vote for U.S. senators, so far as the question of confirming Judge Garland goes, will have been permanently diminished to zero. Censequently, unless the Court causes or directs the full Senate to determine whether to provide advice and consent for the Garland nomination before January 20, 2017, the harm to me will be irreparable. For obvious reasons, monetary damages, even if available, could not restore my voting power on this particular confirmation. 14- The Senate will in [proforma] session to take action on nominations between now and January 20, 2017. The Senate calendar includes proforma sessions every 3 days [excluding Sundays) between now and January 3, 2017, after which time the 115th Congress convenes: The proforma sessions are intended, at least in part, to preciude recess appointments, and therefore must be capable of con?rming nominees. in Not?! Labor Relations 80?. v. Noel Canning, 134 S. Ct. 2550, 2574 [2014), this Court concluded that, for purposes of the Recess Appointments Clause, ?the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.? 15 While Senate Standing Rule calls for nominations to be returned to the President if not acted upon by the Senate during a particular session, the obvious purpose was to address situations where there was insuf?cient time for the Senate to act - not to provide a loophole to reject a nomination without Senate consideration. Despite this rule, there is no legal or constitutional foundation for a nomination to expire by inaction. Of course ifthe Garland nomination is withdrawn for whatever reason, then the injunctive reliefl request would be moot. 9 2) THE LEGAL RIGHTS OF APPLICANT ARE INDISPUTABLY CLEAR The logic underlying the issue I have raised, and injury 1 have suffered, is simple, compelling and clear. When the entire Senate votes, the 17th Amendment requires that my Senators be provided ?one vote.?16 To deny my Senators their ?one vote? allotment diminishes the effectiveness ofmy vote for those senators just as if they were never elected or seated. in the specific case of the Supreme Court nomination ofjudge Garland, the Constitution requires that the entire Senate must vote. Therefore, if my senators are not allowed to vote, I have been injured in a specific, concrete and particularized way not shared by voters in states with senators who, by blocking Senate action, achieve their desired rejection ofthat nomination. To illustrate my claim, suppose that prior to voting on whether to consent to judge Garland?s appointment, a majority of senators decided that New Mexico?s senators would not be allowed to vote on that confirmation. That would clearly be an unconstitutional action under the 17th Amendment, which requires that each senator have ?one vote.? The issue then becomes who, if anyone, has been injured by that deprivation. I believe it is equally clear that New Mexico voters, including me, would be the ones injured with a loss of effectiveness of their vote. That would be an actual and particular injury to myself and other New Mexico voters. The facts underlying my Application are the same as just described - but on steroids. Twelve senators have procedurally blocked 88 senators from having a vote on whether to confirm judge Garland. 16 US. Constitution, 17th Amendment: "The Senate ofthe United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one 10 I understand that the injunctive relief 1 am asking the Court to provide is extraordinary: instruct the Senate to vote by a certain time on a Supreme Court nominee. But the situation at hand is also extraordinary, and unless remedied will irreparably injure me and threaten the viability ofour three branches of government and our constitutional separation ofpowers. 21] Applicant has standing When a group ofsenators blocks Senate consideration ofa Supreme Court nominee, and senators representing me are prohibited from voting, 1 am deprived of the effectiveness of my constitutionally provided vote for United States senators. The 17th Amendment of the United States Constitution provides: The Senate ofthe United States shall be composed oftwo Senators from each State, elected by the people thereof, for six years; and each Senator shall have one [Emphasis added). This constitutional provision vests citizens with the right to vote for and elect senators who are each to have one vote in Senate actions. The 17th Amendment makes New Mexico?s senators my elected representatives, who serve for my benefit.l7 Diminishing the ?one-vote? power of elected senators is a specific injury-in?fact to voters such as me, ofa nature long recognized as sufficient to establish standing. In Dept. of Commerce. v. (1.5. House ofRepresen totiwesI8 this Court held: Appellee Hoffmeister?s expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in?fact requirement ofArticle standing. In the context ofapportionment, we have held that voters have standing to challenge an apportionment statute because ?[t]hey are asserting ?a 17 Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1863-4 [1995) 18 Dept. ofCommerce et al. v. U.S. House ofRepresentatives et at, 525 US. 3 16, 331-2 [1999] 11 plain, direct and adequate interest in maintaining the effectiveness of their votes.? it is important to recognize that the harm I am claiming is different from the generalized harm that has precluded voter standing in situations where, for example, without a vote ofthe full body the Senate declines to consider legislation. i understand that my voting power is not necessarily diminished when the Senate does not consider legislation that is within its discretion to act, or not act, upon. My voting power is diminished, however, when my senators are procedurally blocked by other senators from voting on items that the full Senate must vote on such as whether to provide advice and consent for a Supreme Court nominee. When the entire Senate votes, my senators must be provided ?one vote.? And the Constitution requires the entire Senate to vote on Supreme Court nominees. 1. When the President nominates a person to ?ll a Supreme Court vacancy, the Senate as a body must, within a reasonable time, vote to determine whether to provide advice and consent. The Senate cannot ignore a Supreme Court nomination. It must participate in the appointment process. The Framers of the Constitution intended the entire Senate to vote on Supreme Court nominees. This is supported by the Constitution?s language, the Framer?s contemporaneous writings, and the history ofhow the Nominations and Appointments Clauselg has been administered over time. The President and the Senate share the power and duty to fill vacancies on the Supreme Court. The US. Constitution, Article II Section 2, provides that the President ?shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of 1?3 US. Constitution, Article Ii, Section 2 12 the supreme To the extent there is ambiguity as to what the ?advice and consent? role of the Senate requires, is emphatically the province and duty ofthe judicial department to say what the law is." Marbuij/ v. Madison, US. 137, 177 [1803]. The Constitution?s Article Ii, Section 2 establishes the inter-dependent roles of the President and Senate in filling Supreme Court vacancies. The President shall nominate, and by and with the Senate?s advice and consent, shall appoint. When read in its entirety, Article Ii Section 2 clarifies that the appointment ofjustices to the Supreme Court is a power and dutyjointly vested in the President and the Senate. This clarity is confirmed by the final clause of that section which states that, unlike the Supreme Court, the appointment of other officers may, by law, vest in the President alone: [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall 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 ofsuch inferior Officers, as they think proper, in the President alone. in the Courts of Law, or in the Heads ofDepartments. [Emphasis added] When the Senate refuses to participate, the constitutional process breaks down and the President is divested ofhis power to appoint. Extrapolating, if the Senate entirely neglected its advice and consent role, it would procedurally dismantle the judiciary. That does not make sense. Edmond v. United States20 decided by a unanimous Supreme Court, explains why the Senate is required to participate in the appointment process. Justice Scalia wrote: Appointments Clause of Article II is more than a matter of?etiquette or protocol?; it is among the significant structural safeguards of the constitutional scheme. By vesting the President with the exclusive power to select the principal [noninferior] officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial The 20 520 13 President's power to select principal officers of the United States was not left unguarded, however, as Article ll further requires the ?Advice and Consent ofthe Senate.? This serves both to curb Executive abuses of the appointment and ?to promote a judicious choice of [persons] for filling the offices of the union,? The Federalist No. 76, at 386?387. Bv requiring the ioint participation of the President and the Senate the Appointments Clause was designed to ensure public accountability for both the making ofa bad appointment and the rejection of a good one?1 Alexander Hamilton explained in The Federalist that ?[t]he ordinary power of appointment is confided to the President and Senate And, ?[the Senate] can only ratify or reject the choice [the President] may have made.?23 Any fair reading of the The Federalist papers recognizes that inaction was not an option even contemplated by the Framers. Hamilton?s writings also explain, at least in part, why the entire Senate must participate in the appointment process. He basically says that while ?some individuals? in the Senate might be improperly influenced, if the entire ?body? is acting there will always be a ?large proportion? of ?independent and public-spirited? senators to preserve the integrity ofthe process: But it is as little to be doubted that there is always a large proportion ofthe body which consists ofindependent and public?Spirited men who have an in?uential weight in the councils ofthe That it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the Senate, yet the supposition that he could in general purchase the integrity of the whole body would be forced and improbable.? Moreover, there was a reason why the Framers vested the appointment power in the President and the Senate, and not the electorate or the House of Representatives. The Senate was perceived to be a stable and deliberative body. Unlike the House of Representatives, it was not ?so fluctuating? and r?nurnerous? as to threaten an orderly 21 Ibid. at 659-60 [emphasis added] 22 The Federalist No. 67 23 The Federalist Papers No. 66 24 The Federalist, No. 76. 14 appointment process which, if assigned to the House, would invite ?infinite delays and embarrassments.? The Framers expected that the Senate would exhibit ?deliberation? and ?circumspection,? and serve as an ?excellent check? to assure that Presidential nominees were not governed by ?private inclinations and interests.?25 The current situation in the Senate is the complete opposite ofwhat the Framers intended with a small group of powerful Senators obstructing an orderly nomination and appointment process to fill Supreme Court vacancies. in addition to the Framer?s contemporaneous expectation that full Senate participation was to be part of the jointly-administered Appointments Clause, the history of how that Clause has been administered supports the interpretation that a Senate up-or- down vote on nominees is required within a reasonable time. The recent Supreme Court case of NLRB v. CanningZG supports the premise that the Senate as a body must participate in appointments and decide whether to provide advice and consent. In NLRB the Court was tasked with interpreting the Recess Appointments Clause of the Constitution, which is part of the same Nominations and Appointments section at issue in this case. A question before the Court was: When does a Senate adjournment becomes a ?recess? that triggers the President?s power to temporarily appoint officials without Senate advice and consent? The Constitutional language surrounding recess appointments was sparse and ambiguous. In its decision, the Court explained that ?in interpreting the Clause, we put significant weight upon historical practice [emphasis in The Court 25 The Federalist NosCt. 2550 [2014] 27 NLRB at 2559 15 confirmed that ?[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions? regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U.S. 655. 689 (1929).28 The Court also held: That principle is neither new nor controversial. As Iames Madison wrote, it ?was foreseen at the birth of the Constitution, that difficulties and differences of Opinion might occasionally arise in expounding terms 8i phrases necessarily used in such a charter. . . and that it might require a regular course of practice to liquidate 8; settle the meaning of some of them.? . . . . And our cases have continually confirmed Madison?s View.29 The Court then looked to the history of use of the Recess Appointments Clause, from 1789 to the present, to determine when an absence would became a ?recess?: . . . the President has consistently and frequently interpreted the word ?recess? to apply to intra?session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three~quarters ofa century of settled practice is long enough to entitle a practice to ?great weight in a proper interpretation? of the constitutional provision. The Pocket Veto Case, 279 U.S., at 689. This same type of historical analysis demonstrates that the Nominations and Appointments Clause30 requires full Senate participation that either confirms or rejects a nominee within a relatively short period of time. The U.S. Senate?s compilation of the disposition of every Supreme Court nomination from 1789 until the present shows that during that time there were 161 nominations [Exhibit 2). Of those, only nine nominations received ?no action,? and of those, four nominees were nevertheless confirmed or refused within months. Of the remaining five, one vacancy in 1866 was eliminated because the seat was abolished and the other four occurred in the short period between 1844 and 1853. In sum, but for a short ante bellum 28 NLRB at 2559 29 NLRB at 8 39 U.S. Const. Art. Sec. 2 16 period in the mid-18003, the practice ofthe Senate has always been to consider and act expeditiously to confirm or reject a Supreme Court nominee. This history is at least as consistent and compelling as the history relied upon by the NLRB Court, and demonstrates that considering and acting on Supreme Court nominations within a reasonable time is constitutionally required. Contrary to what Respondents have alleged in the lower courts, a ?reasonable time? is a standard that courts can ascertain. The Supreme Court has established judicially manageable standards to address Constitutional gaps similar to the one at issue in this case. Again, in NLRB v. Canning, the Court looked to historical practice to determine what a presumptively appropriate time would be for a Senate absence to become a ?recess.? The Court there held that . in light ofhistorical practice, that a recess ofmore than 3 days, but less than 10 days is presumptively too short to fall within the Clause. We add the word "presumptively? to leave open the possibility that some very unusual circumstance a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response could demand the exercise of the recess?appointment power during a shorter break. [It should go without saying except that JUSTICE SCALIA compels us to say it that political opposition would not qualify as an unusual circumstance.)31 By the same token Exhibit 2 [from verified pleadings in the courts below), a US. Senate compilation ofthe history of Supreme Court nominations in the United States, provides ample information for a Court to establish a presumptively reasonable time for the Senate to act on nominations. As discussed earlier, the longest Supreme Court nomination process prior to Judge Garland was 126 days, and the average time for a Supreme Court nomination to be vetted and resolved was 25 days.32 While the Court need not decide now what a presumptively ?reasonable time? for purposes of this Emergency 31 NLRB at 21 32 ?Supreme Court Nominees Considered in Election Years Are Usually Confirmed,? New York Times, by Aisch, Keller, Lai and Yourish, 3/16/16 17 Application, it can certainly reject Respondents? position that ?never? is an acceptable time? frame. In 1998, in response to the slowing ofthe judicial confirmation process, former Chiefjustice Rehnquist noted the obvious, ?[t]he Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry, it should vote him up or vote him down.?33 In the present situation, we are not just dealing with a slowing, we are dealing with a complete stoppage. 2. The lower court dismissals were in error. In blocking consideration of Judge Garland?s nomination, ReSpondents denied New Mexico senators their 17th Amendment ?one vote? in the con?rmation process, and consequently injured Applicant by diminishing the effectiveness of his vote for senators relative to voters in states whose senators blocked Senate action. Both the district court and court of appeals determined that my claims should be dismissed because I did not suffer a constitutionally-sufficient injury to establish Article standing. Both courts, however, reached their conclusion without ever addressing the threshold question ofwhether the Senate must vote within a reasonable time on duly- nominated Supreme Court justices. ifa vote is required on judge Garland?s nomination, as have argued, and New Mexico?s senators have been blocked from voting by a few senators seeking to achieve a defacto rejection of the Garland nomination, the effectiveness of my vote for New Mexico senators has been diminished in a way not shared by other citizens. The district court denied my preliminary injunction motion and dismissed my Petition on the basis that i lacked standing because my ?alleged injuries are not sufficiently 33 ?Senate lmperils judicial System, Rehnquist Says,? by John H. Cushman, Jr., New York Times, January 1, 1998, 18 individualized,? i.e. they were too general and common to all citizens. [Exhibit While the court was correct that a claimed Article 111 injury should not be generalized or common to a_ll citizens, it neglected to recognize that a sufficient injury may be common to my citizens. And that is the case with the injury I have suffered. While the Court oprpeals (DC) summarily affirmed the district court decision, it did so on the similarly erroneous conclusion that my injury is not ?concrete and particularized,? and is ?wholly abstract and widely dispersed.? Aside from Lujan, the appellate court relied upon Raines v. Byrd, 521 U.S. 811, 829 [1997] and FEC v. Akins, 524 US. 11, 23?24 [1998) [Exhibit Rather than precluding my standing, however, i believe those two cases support my standing. in Raines the Court was faced with a lawsuit by members of Congress stemming from the Line Item Veto Act. The Court there determined that the lawsuit should be dismissed because at that time there was not a ?sufficiently concrete injury? no vetoes had yet occurred. Of critical importance, however, is that two months later when the President actually used the line item veto on particular legislation, the court agreed that the injury had become particularized enough to establish Article standing.34 Moreover, Raines found that while an ?institutional? injury to members of congress was not specific enough, a claim by an individual such as myself, had one been made, could suffice: in sum, appellees have alleged no injury to themselves as individuals (contra, Powell the institutional injury they allege is wholly abstract and widely dispersed (contra, Coleman J, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience.35 34 Clinton v. City ofNew York, 524 US, 417 [1998) 35 Raines at 828-9 19 Similarly, in Federal Elections Commission v. aliens}6 the Court held that ?an widely shared does not, by itself, automatically disqualify an interest for Article purposes. Such an interest, where sufficiently concrete, may count as an ?injury in fact.??37 The fact that my injury is shared by other citizens, which i do not contest, does not defeat standing.38 in determining that the voters in FEC had standing, the Court held: Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ?injury in This conclusion seems particularly obvious where [to use a hypothetical example] large numbers of individuals suffer the same common?law injury (say, a widespread mass tort], or Where large numbers ofvoters suffer interference with voting rights conferred by law. 39 In my situation i have not asserted an abstract or speculative situation where the effectiveness ofmy vote could be diminished under some particular future scenario. Rather, the New Mexico senators 1 voted for have been denied their ?one vote? on a particular matter that thefuil Senate is required to consider: whether to consent to the nomination of Merrick Garland to the Supreme Court. While Respondents might claim that there is no actual, particularized injury because there has been no vote, this ignores the reality that 12 senators have caused an outcome (withholding consent] that constitutionally requires a vote of the majority of the Senate to accomplish. Certainly voters in Utah and Texas, whose four senators signed the letter blocking Senate action [Exhibit have not been harmed 36 524 37 See also Pye v. United States, 269 F.3d 459, 469 [4th Cir. 2001], which heid that long as the has a concrete and particularized injury, it does not matter that legions ofother persons have the same injury.? 38 In his concurrence in Lujon v. Defenders of Wildlife, justice Kennedy explained: ?While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way.? Lujan at 581. See also Worth Seldin, 422 US. 490, 501 [1975). 39 PEG Akins at 24 20 they have obtained extraordinary voting strength far more than their 1/100 constitutional allotment. This Court has explained that my assertion of ?a plain, direct and adequate interest in maintaining the effectiveness of [my] votes [is] not merely a claim of the right, possessed by every citizen, to require that the Government be administered according to The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.? Baker 12. Carr. 40 b] This case is justiciable, and the claims made do not impinge on either the ?Speech or Debate Clause? of the US. Constitution or the ?Political Question Doctrine.? lusticiabiligv: in deciding whether a claim is justiciable, two findings must be made: 1] that ?the duty asserted can be judicially identified and its breach determined," and 2] that an effective remedy can be fashioned. Baker v. (Stunt1 in the action below, I had asked the district court to determine that the Senate has a nonndiscretionary duty to determine whether it will provide advice and consent to the Supreme Court nomination ofludge Garland, and that the Senate has breached that duty. I also requested that the district court grant both declaratory and mandamus relief to remedy that breach of duty. Granting that reliefin a timely manner would cause the Senate to consider Judge Garland?s nomination and would effectively remedy the situation. In Powell, the Court determined that declaratory relief alone could satisfy the justiciability requirement.42 4-0 369 41 369 US. 186,198(1962) 42 Powell v. McCormack, 395 U.S. 486, 516?518(1969] 21 Speech or Debate Clause: The ?Speech or Debate Clause? of the US. Constitution43 provides that ?for any Speech or Debate in either House, [senators or representatives] shall not be questioned in any other Place." The ?Speech or Debate Clause? is not a bar to this action against Respondents Senator McConnell and Senator Grassley. That clause only provides protection from lawsuits against legislators resulting from ?words spoken in [c]omrnittee reports, resolutions, and the act of [and] things done generally in a session ofthe House by one of its members in relation to business before it?? The refusal to act by a handful of senators, in order to procedurally prevent the Senate from performing its duty to participate in the judicial appointment process, is not an activity ?done generally? by senators ?in relation to business before? them. in addition, "it is clear from the language of the Clause that protection extends only to an act that has already been performed.? U. S. v. Here, the issue relates to Senate inaction. Notably, the Supreme Court explained in Gravel v. United States that the Speech or Debate Clause protections are limited: Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either As the Court oprpeals put it, the courts have extended the privilege to matters beyond pure speech and debate in either House, but ?only when necessary to prevent indirect impairment ofsuch deliberations.?i6 Respondents have argued below that the "Speech or Debate Clause? is an absolute bar to my claims. According to Respondents, because my claims relate to the nomination and appointment of a Supreme Court justice, and because the conduct complained of is ?33 US. Constitution, Article 1, Section 6 4-4 Powell at 502 45 44.2 us. 477, 490 (1979) Gravel v. United States, 408 US. 606, 625 [1972) 22 legislative in nature, any action against Respondents is barred. it is not as simple as ReSpondents suggest. First, the Constitution does not assign the Senate a role ofngn-participation in the appointment process. The Senate?s role is to participate. Conduct by Respondents in furtherance of non-participation is not a legitimate legislative activity that would be protected by the Speech or Debate Clause. Second, the Speech or Debate Clause does not apply to the Senate itself, and Common Cause v. Biden47 does not preclude action against the Senate itself, as Respondents have previously contended. Just the opposite. Common Ca use suggests that an action against the Senate was not only permissible, but necessary: ?In short, Common Cause's alleged injury was caused not by any of the Respondents, but by an ?absent third party? - the Senate itself. We therefore lack jurisdiction to decide the case.?8 Powell v. McCormack left open the question ofwhether the Speech or Debate Clause would bar an action against individual members of Congress if no other remedy was available.?i9 Political Ouestion Doctrine: The premise underlying the Political Question Doctrine is the desire to prevent federal courts from deciding policy issues. This doctrine ?helps to preserve the separation ofpowers by ensuring that courts do not overstep their bounds.?50 The political question doctrine is a ?narrow exception? to the rule that the judiciary has a 47 748 F.3d 1280 (DC. Cir. 2014) 48 Common Cause at 1285 4?9 Powell at note 26: ?Given our disposition ofthis issue, we need not decide whether, under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available.? 50 Baker Carr at 210 23 responsibility to decide cases properly before it.51 While the resolution of issues involving a coordinate branch of government will sometimes have political implications, the judicial branch must not neglect its duty to ?say what the law is? merely because its decision may have ?significant political overtones.? Marbury v. Madison.5?2 The political question doctrine rests in part on prudential concerns calling for mutual respect among the three branches of government. 53 The Supreme Court has repeatedly rejected the view that a claim is nonjusticiable simply because a court is called upon to resolve the propriety or constitutionality of the act of another branch of government.54 A blanket rule against judicial ?interference,? which Respondents have seemed to advocate, threatens the independence of the judiciary and its co?equal and critical role in protecting against legislative encroachments on the people?s rights and freedoms. 551n United States v. Ballin, the Court found that the ?[C]onstitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights.? 56 The Indiana case of Monfort v. State57 explained ?[t]he separation of powers provision exists not only to protect the integrity of each branch of government, but also to ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 [2012]. 52 At177; See also,]apan Whaling Ass?n v. American Cetacean Soc?y, 478 US. 221, 230 [1986} 53 Goldwater 12. Carter, 444 US. 996, 1000 [1979) (Powell, J., concurring); Nixon v. United States, 506 US. 224, 253 [1993) [Souter, J., concurring in judgment]; Conn. Coalitionforjustice in Educ. Funding, Inc. v. Rell, 295 Conn. 240, 255, 990 A. 2d 206 [2010). 54 Zivoto?sky, 1.32 at 1432 [Sotomayon concurring)[citing United States v. Munoz, 495 US. 385, 390?91 [1990)]; see also Youngstown Sheet??a Tube Co. v. Sawyer; 343 US. 579 [1952) [noting that a categorical rule of because ofpossible interference with executive power, even in times ofwar, has never existed]. 55 Stern v. Marshall, 564 US. 462, 483 [2011) (Roberts, [explaining that the framers demanded that the indiciary remain ?truly distinct from both the legislature and the executive?) 55 United States v. Ballin, 144 11.5. 1, 5 [1892) 57 Monfort v. State, 723 407, 413 (Ind. 2000], quoting Alexander Hamiiton in The Federalist No. 78. 24 permit each branch to serve as an effective check on the other two,? with the courts being considered as ?bulwarks ofa limited Constitution, against Legislative encroachment.? In determining that there was no political question barring the courts from deciding the Powell case, the court defended its established role [at 549]: Our system of government requires the federal courts on occasion to interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts? avoiding their constitutional [I]t is the reSponsibility of this Court to act as the ultimate interpreter of the Constitution. 3. INIUNCTIVE RELIEF WILL AID THIS APPELLATE JURISDICTION Granting the injunctive relief requested by this Application under the All Writs Act58 will aid the Court?s appellate jurisdiction in two ways. First, and most clear, is that it will preserve my claim and avoid irreparable harm in a manner that does not harm Respondents, and in fact serves the public interest. This will assist the Court?s certiorari jurisdiction.59 Second, it will help preserve the viability and strength of the appellate role of the Supreme Court by reinstating an orderly and timely nomination and appointment process for new justices. As discussed previously, after january 20, 2017, the injury associated with the diminished effectiveness ofiny vote will be irreparable. The injury is the loss of my vote?s effectiveness, not the outcome that may or may not be achieved by a vote on judge Garland?s appointment. 58 All Writs Act, 28 U.S.C. 1.65 1 59 The Court?s authority under the Act "extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may later be perfected.? FTC 12. Dean Foods Co, 384- us 597, 603 [1966] 25 in addition, it cannot be ignored that obstruction of the Senate confirmation process threatens the judiciary and this Court?s appellate role. As was stated in an N.Y.U. Law Review article by Lee Renzin in 1998: The characteristics of the Senate that ostensibly enable it to make a vital contribution to the appointment process are rendered moot when the full Senate does not vote on nominees. . . . [T]he prospect of the Senate having the unilateral ability to dismantle the federal judiciary without a "check? either by the people, through procedures designed to ensure accountability, or by the full Congress and the President, via bicameralism and presentment is one which raises serious separation of power concerns. Simply put, Senators not only'are infringing on the power of the other two branches, but they are doing so in a manner that robs the public ofan opportunity to determine how their particular Senator feels about the nominees that reach the Senate. 60 4. A BALANCING OF THE EQUITIES WEIGHS IN FAVOR OF AN INIUNCTION a) An injunction will not harm other parties While an injunction is necessary to protect my rights, causing the Senate to perform its Constitutionally-required role in the Supreme Court nomination process will not harm Respondents in any significant way. As I have stated throughout this action, I am not asking for a particular outcome of the confirmation process, only that the process itselfbe undertaken in a meaningful time-frame. The Senate may decide not to provide advice and consent for the Garland nomination, in which case the outcome will be the same as the current situation. Or, the Senate may vote as a body to confirm Judge Garland. Ifthe Senate, by a majority vote, confirms the Garland nomination, there is again no harm to any party. 50 [citations omitted]; ?Advice, Consent, and Senate inaction - Is Iudiciai Resolution Possible?? Lee Renzin, N.Y.U. Law Review, Vol.73:1739, Nov.1998 at 1757 26 Fulfilling its constitutional role can hardly be construed as a harm to any of the Respondents. Nor would it be disrespectful ofthe Senate for the Court to require the Senate to undertake its constitutional role ofadvice and consent with respect to judge Garland?s nomination. Powell v. McCormock explained the issue well: Powell?s right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of the respect due coordinate [branch] ofgovernment, nor does it involve an ?initial policy determination of a kind clearly for nonjudicial discretion.? Baker v. Corr, 369 US. 217, 82 691 at 710. Our system ofgovernment requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts? avoiding their constitutional responsibility.61 Finally, I would point out that the remedy I have requested is in fact consistent with Senate rules,62 and how the Senate has historically administered Supreme Court nominations. Those rules call for nominations to be referred to the judiciary Committee, which determines whether to recommend that a nominee be confirmed or rejected. The nomination then proceeds to the Senate floor, where the entire Senate votes on whether to confirm or reject a nominee. Nowhere do Senate rules suggest that a nomination may be forever ignored, and not even brought to the Senate floor for debate. Granting this Emergency Application would simply have the Court require the Senate to perform its Constitutional duty. 61 Powell McCormaclr, 395 (18.486, 548?9 (1969) 62 Rule of the Standing Rules of the Senate 27 b) An injunction serves the public interest in the particular situation of this Emergency Application, granting the injunction I have requested would serve the public interest for a number of reasons. First, requiring the Senate to vote on Judge Garland?s nomination would help to restore the balance ofpower among the three branches of our federal government. Respondents? refusal to consider the nomination ofjudge Garland has adversely impacted all three ofthe branches: the President is deprived of his power to appoint judges to the United States Supreme Court; the Senate is unable to fulfill its ?advice and consent? role in the judicial appointment process because senators are not allowed to vote on whether to provide advice and consent,- and the Supreme Court is deprived ofits statutorily~prescribed nine justices,?33 creating a situation where the Court is unable to resolve important issues and establish a uniform system of laws throughout the United States. justice Kennedy has said that ?it remains one of the most vital functions of this Court to police with care the separation of the governing powers??i in his dissent in Morrison v. Olson, justice Scalia argued that, in the context ofa separation of powers challenge to an action of Congress, the Court does not owe Congress the same level of deference that would be afforded when reviewing legislation.65 Second, granting the injunction would halt a further erosion of the separation and balance ofpowers. Recently, in a Wall Street journal opinion article, President Obama explained the constitutional crisis that the country is facing, and the threat it poses to the 53 28 U.S.C. ?1 5t Public Citizen v. United States Department ofjustice, 491 US. 440, 468 (1989) (Kennedy, concurring] 65 Morrison v. Olson, 487 US. 654, 704~5 (1988] (Scalia, dissenting) 28 balance ofpower among the three branches of government. He discussed that if a group of senators refuse even to consider a nominee in the hopes ofrunning out the clock until they can elect a president from their own party, so that he can nominate his own justice to the Supreme Court, then they will effectively nullify the ability ofany president from the Opposing party to make an appointment to the nation?s highest court. They would reduce the very functioning of the judicial branch of the government to another political leverage point. We cannot allow the judicial confirmation process to descend into an endless cycle ofpolitical retaliation. There would be no path to fill a vacancy for the highest court in the land. The process would stall. Court backlogs would grow. An entire branch of government would be unable to fulfill its constitutional role. And some ofthe most important questions of our time would go unanswered.66 President Obama?s forewarning appears to be valid. On October 17, 2016 Senator john McCain from Arizona was quoted as saying: promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up?)7 While a spokesperson for Senator McCain later walked that statement back, just prior to the November 8, 2016 election several other senators publicly suggested that the Senate could build on the obstruction of the Garland nomination and refuse to consider all Supreme Court nominees of a President, indefinitely.68 This is a trend?line that threatens the judiciary and separation of powers, and must not go unchecked: in the past, when faced with novel creations of this sort, the Supreme Court has looked down the slippery - and has ordinarily refused to take even a few steps down the hill. 55 ?Merrick Garland Deserves a VotewFor Democracy?s Sake,? by Barack Obama, President of the United States, The Wall Streetjournal, juiy 17, 2016. 67 DeBonis, Mike and Kane, Paul: ?Supreme Court is an issue again after McCain suggests Clinton blockade,? The Washington Post, October 17, 2016, 16/ 10/1. 7fsupreme?court-is- 58 Senators McCain, Burr, Cruz and Cornyn. See, Fox, Lauren: November 2, 2016, 29 Free Enterprise Fund, dissent at 700.69 in Metro. Wash. Airports Auth. v. Citizensfor Abatement ofAircraft Noise, Inc. 501 US. 252 [1991], Justice Stevens found that a congressional scheme permitting future encroachment of other branches must be nipped in the bud: The statutory scheme challenged today provides a blueprint for extensive expansion ofthe legislative power beyond its constitutionally confined As James Madison presciently observed, the legislature ?can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on coordinate departments.? Heeding this warning that legislative ?power is of an encroaching nature,? we conclude that the Board of review is an impermissible encroachment.7G Third, ifthe Senate votes on Judge Garland?s nomination, citizens will be provided a voting record on a very important issue. Providing a voting record of senators serves the public interest because that record enables citizens to exercise their role as informed electors in a representative government.71 Fourth, granting the injunction may help restore the judiciary to its statutorily- prescribed levels. The degradation of the judiciary caused by Senate obstruction and inaction is not trivial. According to the Administrative Office of the US. Courts, judicial vacancies have been increasing to the point where, as of October 17, 2016, there were a total of 99 judicial vacancies in the federal court system, and 59 nominations pending. There are currently 35 "Judicial emergencies? in the United States due to the Senate?s delay, neglect and obstruction of the judicial nomination and appointment process. All of these numbers have increased significantly since i filed my original Petition in late August. A 69 Free Enterprise Fund 12. Accounting Oversight Boord69 537 F.3d 667, 700 Cir. 2008) [reversed at 130 US. 477 [2010)] 70 Metro. Wash. Airports Auth. v. CitizensforAbatement ofAircroft Noise, Inc. 501 US. 252, 277 (1991] 71 "Advice, Consent, and Senate lnaction Is Judicial Resolution Possible?? Lee Renzin, N.Y.U. Law Review, Vol.73:1739, Nov.1998 at 1747?8 30 ?judicial emergency? in federal court is a situation in which the courts are unable to keep pace with the cases before them. 7ZAccording to the American Bar Association, the number ofjudicial vacancies existing at the end ofthe current 121.4th Congress will be among the highest ever.73 Fifth, an injunction that results in the confirmation of a ninth justice could Specifically address the inability for the Supreme Court to decide important issues brought before it. Four consequential cases on the Supreme Court?s 2016 docket were decided by default as a result of a 4-4 tie, which has the effect of affirming the lower court judgment.74L When the circuit courts disagree, the Supreme Court must be able to resolve those disputes in order to provide a uniform system of laws throughout the United States. Otherwise, citizens may have different Speech, due process and other rights depending on where in the United States they live. While there is no guarantee that requiring a Senate vote on the Garland nomination before January 20, 2017 would result in the confirmation of a ninth justice, it might. Sixth, in deciding whether to grant the injunctive reliefl have requested, the Court should assign value to the importance of individual claims like mine to preserving the 72 For Circuit Courts, it is defined as ?any vacancy in a court ofappeals where adjusted filings per panel are in excess of 700; or any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel.? For District Courts it is defined as ?any vacancy where weighted filings are in excess of 600 per judgeship; or any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; or any court with more than one authorized judgeship and only one active iudge. 73http r.Ola/content/dam /aha_/uncategorized /20 14-dec1 9 vacno mscons.authcheckdampdf 74' United States v. Texas, No. 15~673; Dollar General Corp. v. Mississippi Band afChoctaw Indians, No. 13?496; Friedrichs v. California TeachersAssociation, No. 14~915; Hawkins 12. Community Bank ofRaymore, No. 14620. 31 structural safeguards of our democracy. At the end ofhis concurring opinion in NLRB v. Canning, 134 S. Ct. 2550, 2617 [2014], Justice Scalia wrote: It is not every day that we encounter a proper case or controversy requiring interpretation ofthe Constitution?s structural provisions. Most of the time, the interpretation ofthose provisions is left to the political branches which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution?s enduring principles over the politics of the moment. Similarly, in Bond v. United States, 564- U.S. 211, 222 [2014], the court held: Separation-of?powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object ofthe Constitution?s concern. The structural principles secured by the separation ofpowers protect the individual as well. in the precedents of this Court, the claims of individuals not of Government departments - have been the principal source ofjudicial decisions concerning separation of powers and checks and balances. See also, Free Enterprise Fund v. Accounting Oversight Board? 537 F.3d 667, 714 (DC. Cir. 2008) [reversed at 130 [1.8.477 [2010)], [Kavanaugh dissent: ?the separation ofpowers protects not simply the office and officeholders, but also individual rights. As Justice Kennedy has stated, ?Liberty is always at stake when one or more of the branches seek to transgress the separation of powers?) Finally, aside from redressing my individual injury as a voter for New Mexico senators, there is also the larger public interest in redressing the fundamental unfairness to those citizens that elected Barack Obama as President in 2012. As of the date this Application is filed, Judge Garland?s nomination will have been pending far longer than any other Supreme Court nominee in United States history. Unless remedied before the end of President Obama?s term on January 20, 2017, the electorate that voted for President 75 537 F.3d 667, 714 (DC. Cir. 2008) [reversed at 130 US. 477 [2010]] 32 Obama in 2012 will have been forever deprived of an outcome of the election which was to provide President Obama with all of the powers and duties of the Presidency for the entirety of his four-year term, including the power to nominate and appoint Supreme Court justices. CONCLUSION have filed this Emergency Application because the effectiveness of my vote for United States senators has been diminished as a result of the obstruction of Respondents. That obstruction has denied the senators that represent me in the Senate of their ability to vote on whether to confirm the nomination ofludge Garland, and has provided the obstructing senators with extraordinary voting power, violating the 17th Amendment allocation of ?one vote? per senator. This conduct has caused me specific, actual injury-in- fact sufficient to establish Article ill standing. The injunction I request by this Emergency Application is the only remedy available to redress that injury and avoid irreparable harm. WHEREFORE, for the foregoing reasons, I pray for a Court order granting this Emergency Application for Injunction Pending Appellate Review, and providing such other and further relief as the Court deems just and proper. 33 Dated: December 15, 2016 Respectfully submitted, STEVEN S. MICHEL, pro 56 New Mexico Bar #1809 2025 Senda de Andres Santa Fe, NM 87501 [505] 690-8733 Stevensmichel@c0mcast.net 34