U.S. Supreme Court Justice Ruth Bader Ginsburg told an audience at Georgetown University that the Senate ought to take up Judge Merrick Garland’s nomination to the Supreme Court, while ceding it could not be forced to.
Ginsburg was asked by a Georgetown student whether there was any valid constitutional argument for the Senate’s refusal to take up Garland’s nomination to succeed the late Justice Antonin Scalia.
“I do think cooler heads will prevail, I hope sooner rather than later,” Ginsburg told Georgetown University Law Center’s incoming class. “The president is elected for four years not three years, so the power he has in year three continues into year four.”
“Maybe members of the Senate will wake up and appreciate that that’s how it should be,” she added. (RELATED: It Looks Like Justice Ginsburg Plans On Sticking Around)
She also added that she was skeptical there was a constitutionally-valid legal remedy to force the Senate to hold a vote.
“If the Senate is not acting, what can be done about it?” she said. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.'”
There currently is a lawsuit pending in federal court from a New Mexico attorney attempting to force such a vote. Though the suit is unlikely to advance beyond the district court level — its argument is exceedingly thin — legal scholars say a Supreme Court justice should not opine on the justiciability of a matter that one day may, however unlikely, be before the high court.
“The answer should have been, ‘I can’t comment.’ Instead, she went ahead and offered an advisory opinion of a now-pending federal lawsuit that is attempting to force a vote on Garland,” Houston College of Law professor Josh Blackman wrote on his blog.
“I continue to dread the possibility that there will be some presidential-related matter that comes before the short-handed Court,” he added. “RBG has done herself no favors.”
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