Legal Question in Appeals and Writs in Maryland

Suing the Senate

I don't think you have much of a chance here, for both procedural and substantive reasons.

On the procedural side, you don't seem to have "standing" -- in other words, you can't sue because you aren't the injured party. A concrete example of standing might involve a fatal car crash -- the spouse of the victim could sue, but a friend could not because the friend's injury wouldn't be as severe. Suits by citizens against the government for some generalized claim like yours are usually dismissed for lack of standing.

A second procedural hurdle is what is known as the "political question doctrine." Courts will not intervene where the dispute is about a political mechanism rather than legal rights. Your proposed suit would very likely be deemed a political question and be dismissed on this basis.

You also could not sue directly in the Supreme Court. Instead, you would have to go to a U.S. District Court. The "counsels and ministers" clause you mention (Which reads "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.") applies only to foreign governments, officials and diplomats, not to the U.S. government or its officials.

Finally, on the substantive side, I think your legal analysis is wrong. The Constitution requires of the President that "he shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other officers of the United States." This clause does not specifically require the confirmation process that we have -- instead, the current process was selected as one means of doing what the Constitution requires. Because the Constitution does not specifically require Senate confirmation at all, the manner in which the Senate conducts (or does not conduct) confirmation hearings is probably not a Constitutional issue, at least in this context.

Also, even if your theory were correct, the Senate could not be required to consent to any nominee -- after all, such a requirement would make the Senate's role meaningless. The Senate is refusing to consent, which doesn't seem to be a violation of any duty it has.

You are correct that Senate rules cannot trump Constitutional requirements, but that doesn't seem to be what is happening here.

By the way, I agree that the current number of vacancies on the Federal bench is a very serious problem. While much of the blame does rest on the Senate for failing to hold confirmation hearings, it is also true that President Clinton has not submitted very many nominations. The President also has not supported his nominees as aggressively as his predecessors did for their chosen judges. There's enough blame to go around.