Garland Exam Question: Model Student Answer

Below is an excellent (not perfect, but given that this was a closed-book exam, very good--not quite an A+ but basically an A) actual student answer to the past exam question about Judge Garland's nomination:

"Article III of the Constitution provides that courts must hear cases or controversies. We don't want the Court issuing advisory opinions. They didn't do it for George Washington and they won't issue an opinion to anyone else who lacks a "case or controversy," Today, we consider this the doctrine of standing. In order for there to be a justiciable "case or controversy" within the confines of Art III, there must be an injury-in-fact, causation, and redressability by the courts. Here, it is clear that Judge Garland would satisfy the minimum constitutional requirements of a case or controversy. First, he has a clear injury-in-fact. His injury is concrete. The Senate's refusal to hold a hearing is potentially depriving him of a position on the nation's most powerful court. An interesting argument would be that the Senate's refusal to hold hearings is not an injury, because he doesn't know that if they will hold hearing, then he will be confirmed. However, I think the Court would find that Garland does have a concrete injury-in-fact when the Senate deprives him the opportunity of being confirmed to the nation's highest court. Second, there needs to causation. It is clear that the Senate is blocking Garland's confirmation, causing his injury. Third and finally, there needs to be redressability by the courts. Here, it would be easy in today's time of judicial supremacy for the Court to order the Senate to at least hold the hearings. Thus, this issue could be redressed by the courts. Garland meets all the requirements for constitutional standing under the "case or controversy" requirement of Art. III.

While the Constitution sets out the absolute minimum requirement for what is justiciable (case or controversy), the Court can always impose greater requirements, such as third party standing or as will be discussed, the political question doctrine. These are prudential doctrines that the court does not have to observe, but can certainly choose to. The political question doctrine is the Court exercising judicial restraint, saying that certain matters are best left to the political branches (Congress and the executive) than the judiciary. Factors the court would look at come from Baker v. Carr. Primarily, the Court would examine whether there is a textual commitment to another branch. Here, there is no question but what the Constitution grants the Senate the power to give their “advise and consent” to presidential appointments. For a court to step into this territory, is to enter into the political arena that is more accountable to the people. Rather than for the court to decide, it should be left to the democratic process. If the American people are unhappy with how the Senate is doing their job as textually committed to them in the Constitution, they can vote them out.

Furthermore, a court would look to see if they would have to make a policy decision

before making a judicial decision. The Court's decision would be undoubtedly political. It

would revolve around how much they like Garland (and want to work with him). It opens

the door for huge biases. Finally, the court would look to the embarrassment factors and

if this would spark conflict between branches. Here, as I alluded to, the Court should be embarrassed if they take this decision out of the hands of the Senate. The Court is a body

of nine unelected lawyers that has very few checks on them. One of those few checks is

the power of appointment and confirmation by political branches (President and Senate).

If the Court were to intrude on the Senate's authority to give their advice and consent,

then the Court truly is the most powerful branch. This is just like the case regarding

Nixon (the judge) for his impeachment. This is the court interfering with a check othemselves!! 

 

I don't think the Court, activist as it is, would ever find that Garland's case is justiciable because of the political question doctrine. However, if they do find standing and reach the merits, Garland would still lose. The Constitution doesn't say anything about the Senate's duty to hold hearings. So, it’s likely the court will say, like with the impeachment power, the Senate can do as it sees fit. Furthermore, even if the Court finds somewhere (maybe in the penumbras) that the Senate must hold hearings, the Senate would make "Garland" a verb. The Senate (whatever their ideological leaning) would never confirm Garland when they feel they were railroaded into it by the Court. Especially when the vacant seat is Scalia's."