***Breaking*** SenJeffMerkley just filed a federal injunction to stop the Kavanaugh Vote.

[hlthe2b]

Link to tweet

Sen. Jeff Merkley (D-Ore.) on Wednesday will announce that he's seeking an injunction in federal court designed to stop a final vote on Brett Kavanaugh, asserting an obstruction of his constitutional duty to advise and consent on nominees.

Merkley's still-pending filing in the U.S. District Court for the District of Columbia comes as Senate Republicans vow to push ahead with a vote on President Donald Trump's Supreme Court nominee in the coming days — and hours before a landmark hearing slated with Christine Blasey Ford, who has alleged a decades-old sexual assault by Kavanaugh.

Merkley's bid for an injunction hinges on the Senate's constitutional duty to provide advice and consent on nominees and charges that he's been prevented from fulfilling that due to the withholding of records on Kavanaugh's past service in the George W. Bush administration.

More at the link on politico.com

[uponit7771]

1. Good, does anyone know what good this will do? Red Don doesn't seem to care about law. tia

[gabeana]

27. lets just be happy

that we have fighters on our side
who are doing what then can to stop the monstrosity that is the GOP and their Judge

[uponit7771]

28. +1

[KPN]

101. Exactly.

[NCjack]

29. It will get the issue into the evening news. Maybe it will turn out the 1 vote

that will decide an election.

[uponit7771]

37. +1

[DownriverDem]

46. Murkowski

is calling for a FBI investigation. She could be the vote we need. She ran & won as a write in because a RWNJ won the primary. She wants to know more before she votes.

[watoos]

63. Murkowski pulled back her FBI investigation.

[riversedge]

66. Oh no!! What a mistake she is making!

[yardwork]

83. And anything that slows Kavanaugh's confirmation is good for us.

Time is on our side.

[WillowTree]

32. Ummmm........There's this little thing called Separation of Powers.

The courts don't have jurisdiction over how congressional proceedings are conducted.

[DownriverDem]

47. How about

due to presidential interference? trump has blown the separation of powers out of the water.

[WillowTree]

52. I totally don't understand your reference here.

But regardless, constitutionally, the courts do not have any jurisdiction over congressional procedure. None. Really.

[Honeycombe8]

69. This makes sense. But at least there must be some legal argument to make...

the filing must state some legal argument. At least we're trying! Everything should be tried. Don't want any "Maybe we should have...."

[DownriverDem]

86. Okay

Okay. What about presidential interference? Is there anything about one of the 3 branches interfering with one of the other branches? Is there some kind of process? We sure have to suck a lot up.

[WillowTree]

87. What presidential interference are you referring to?

I don't mean that as a challenge, I just want to understand where you're coming from. I still don't think there's any constitutional mechanism for the courts to presume what procedures to follow for one or the other or both houses of Congress, but I'm willing to listen.

[customerserviceguy]

76. That was my first thought

Other than a hand-picked Federal District judge here and there, I can't see where this goes. If it winds up in the DC Court of Appeals, even if Kavanaugh recuses himself (I doubt that he will, even if it's just being able to consult with the other judges on that court) you're still asking a bunch of people who have worked with Kavanaugh (and will still be doing so if he doesn't get confirmed) to go against a colleague.

And look for Trump to make holy hell with it in the weeks until the midterms.

[Initech]

36. No it's all part of the religious right's quest for absolute power.

We must stop them at all costs!

[mahatmakanejeeves]

2. I have doubts about the legality of this.

An injunction against the Senate?

I will reserve my judgment.

[Sherman A1]

9. Agreed

I don’t believe that the courts have jurisdiction.

[Hassin Bin Sober]

21. They don't. The Senate decides by its own rules and votes the definition of advise and consent.

It could be a hearing or it could be smoke signals. Whatever Leadership/majority decides

[zipplewrath]

11. Doesn't have a prayer

Besides that the court has a history of not interfering in congressional internal business, the constitution clearly gives each body the ability to write their own rules of procedure. The only place to "file" this objection would be with the Senate Rules Committee. Guess who controls that?

[lapislzi]

71. You know what also doesn't have a prayer?

Doing nothing.

Which would you rather see a Democratic Senator doing?

[zipplewrath]

73. False dichotomy

There are alot of things I'd rather see him do. Most of them having to do with working with staff to be prepared to participate in various forms of investigation.

[customerserviceguy]

78. With Merkley

this is about optics.

Surely, the Kavanaugh confirmation process can be called the first Democratic Primary of the 2020 election campaign.

[KPN]

103. Right. And not just optics elative to him personally, but to the Democratic Party overall as well

as the underhandedness of the GOP. This is about growing support for the Democratic Party and eroding the GOPs.

Did we see Republicans poo-pawing the 80+ attempts by the House to overturn the ACA? Of course not, but we Dems ... another story. Sometimes I gotta wonder about the "big tent" cahracterization.

[grantcart]

30. Nothingburger

[SunSeeker]

31. Bush v. Gore is precedent that a vote can cause irreparable harm justifying an injunction.

This case is at least as legit as Bush v. Gore.

[WillowTree]

34. Not the same thing. Bush v. Gore had nothing to do with congressional procedure.

This is a whole different situation.

[SunSeeker]

38. But it had to do with a Court interfereing with how a state government conducts a vote count.

Seems pretty similar to me.

[WillowTree]

40. As has been stated before by me or others.......

This is a matter of constitutional Separation of Powers. The courts don't get to tell Congress how to run their proceedings. They simply have no jurisdiction to do this.

[SunSeeker]

96. You need not repeat yourself. I can see you are very invested in that argument. nt

[WillowTree]

102. As you are in yours.

[onenote]

94. Bush v Gore was brought under the Equal Protection Clause

This suit is brought under the Advise and Consent clause. The Supreme Court has jurisdiction over the former. It doesn't have any jurisdiction over the latter.

[SunSeeker]

97. Bush v. Gore was an abomination. It held counting votes amounted to "irreparable harm."

If SCOTUS let that kind of bullshit fly, there is no reason why a federal court would not interpret the advise and consent clause of the Constitution, as this suit asks it to do.


You've stated your position. We'll see what the district court says.

[WillowTree]

106. No. The court held.......

.......using different standards for counting votes in different counties within the state violated the Equal Protection clause because votes that would be counted as valid in the recount in some counties would not in other counties which, in turn, would be a source of "irreparable harm" to those people whose votes did not count only because they lived and voted in the "wrong" county.

[SunSeeker]

107. Yes, it held counting votes was "irreparable harm," as that paragraph says.

Instead of just ordering that any vote be counted if found valid under the rules of any county, it ordered no votes be counted by enjoining the vote count in all counties. That is cray.

[DownriverDem]

48. It's about

presidential interference.

[mahatmakanejeeves]

51. Huh? NT

[renate]

3. love him!

Whether it works or not... he's trying. I love him.

[DownriverDem]

50. Too bad

we didn't give the Dems the power they need to stop the repubs and trump. In November we have a chance to do just that.

[saidsimplesimon]

56. I gave up living in the past before

I was old enough to appreciate my good fortune. Your closing sentence is worthy of note, "we have a chance to do just that". It is not easy to turn the Titanic into safe waters, but worth the effort. imo

[KPN]

104. Optically, it works! It may even help delay. Any delay at this point is a good thing.

[Leghorn21]

4. Now here is a man who PERSISTS

Thank you Senator Merkley



RESPECT

[ananda]

82. Respect

..

[Hassler]

5. So proud he's my senator.

[efhmc]

6. Whether it works or not, he is trying.

[onetexan]

58. right, this is a delay tactic that prolly doesn't have chance but anything helps at this point

good try Sen MERKLEY

[njhoneybadger]

7. Good Move Sen. Merkley

[Haggis for Breakfast]

91. Remember that he was also the first one

to bring national attention to the detention centers where the trump administration is incarcerating children in cages.

[honest.abe]

8. Any chance that could work?

[hlthe2b]

12. Totally uncharted waters, I think.... But then, so too was letting SCOTUS name GWB* President

[The Velveteen Ocelot]

14. I tend to think not - there's a general principle that courts don't interfere

with legislative functions. But this is a very unusual situation, so who knows? We're in uncharted territory once again.

[FBaggins]

15. Not even a litle bit

Might he find a friendly judge willing to make himself look like a fool? Maybe... if the judge has a skeleton in his closet and Merkley is willing to blackmail him...

... but no judge that passed Con Law would do anything but laugh at it.

The courses don't have the power to tell the Senate not to vote on something.

[honest.abe]

16. Yeah, thats what I thought but who knows..

Its the judge's decision.. right?

[FBaggins]

17. It really isn't (the judge's decision)

Last edited Wed Sep 26, 2018, 03:31 PM - Edit history (1)

Might there be a judge somewhere who was willing to take the case and grant an injunction? I suppose it's possible, but he would be slapped down by any appellate court as fast as the paperwork could be filed and would deserve to be impeached/removed - because he doesn't have that power and should know it.

[honest.abe]

53. Ok.. yeah that makes sense.

Thanks.

[The_jackalope]

10. The shit is really hitting the fan today! nt

[Larrybanal]

95. no time to clean that fan

because shit seems to be coming like a hurricane

[Scurrilous]

13. K&R

[beachbum bob]

18. the court has no jurisdiction over congressional hearings and confirmation, its grandstanding

[Calista241]

19. This is for show. No court would try to interfere in the functioning of another branch of gov't.

[gratuitous]

20. All right, this is called fighting back

Will it be successful? Don't know. Courts have been reluctant to get involved in what they deem to be internal workings of the legislative branch. However, by tying this request for an injunction to a constitutional duty (not a constitutional option) by the Senate, Merkley's filing may have a leg to stand on.

But this is called fighting back with everything we've got on a playing field heavily tilted against us.

[rsdsharp]

22. Separation of powers.

The Court may actually dismiss this sua sponte, without waiting for a defense motion.

[Recursion]

25. I'll be terrified if they don't

I think this is a terrible idea

[H2O Man]

23. Recommended.

I've been wondering when this would happen! I like the timing.

[Recursion]

24. This is a terrible idea

The worst possible outcome is the court taking this seriously

[onenote]

26. I get why he did it, but even he knows it won't go anywhere

This falls squarely within the realm of cases the courts generally won't touch.

[Hermit-The-Prog]

33. message to VOTERS

Thank you Sen. Merkley!

This should make the press get the word out to voters -and- get some voters talking around the coffee pot to inspire some others to become voters.

[MineralMan]

35. That injunction is unlikely to be granted, since the Senate

controls its own rules, based on Constitutional language. I don't see any judge issuing an injunction over this, due to that.

[SunSeeker]

39. And courts interpret the Constitution.

This case is as legit as Bush v. Gore. It was Bush v. Gore that started this.

[MineralMan]

42. Yes, they're supposed to.

However, if you read the language regarding the Senate in the Constitution, you'll find that it sets its own rules, which is in that language.

The Constitution is a relatively simple document. The judiciary department is also described in it, along with its duties.

There are three branches of federal government, all supposedly equal in power. However, each works differently, as described in the Constitution. A federal judge is not about to try to change the language and meaning of that language in the description of a different branch of government.

You are incorrect in your evaluation. An injunction in this particular situation is very unlikely, and would probably be overturned by the next level of the court very quickly.

Separation of powers.

[SunSeeker]

45. Tell that to the Bush v. Gore Court.

They had no problem with Separation of Powers. They certainly should have, but they didn't.


Just as the Court can interpret the Constitution, they can interpret the rules set forth in the Constitution for the Senate and decide if the Senate is following them.

[WillowTree]

59. You really want the Bush v. Gore decision to have application here but it just doesn't.

What "rules" do you think are "set forth in the Constitution for the Senate"? Answer: There are none. The fact is that the Constitution doesn't set the procedural rules for Congress. It is left up to the House and Senate to set their own rules and the Constitution gives the courts no jurisdiction over that. I don't think you understand what Separation of Powers actually is and refers to.

[SunSeeker]

80. No, what I really want is for Bush v. Gore to be overturned.

Have you read the filing and determined what the violation is that is being alleged?

Merkley's bid for an injunction hinges on the Senate's constitutional duty to provide advice and consent on nominees and charges that he's been prevented from fulfilling that due to the withholding of records on Kavanaugh's past service in the George W. Bush administration.

https://www.politico.com/amp/story/2018/09/26/merkley-injunction-stop-kavanaugh-vote-843080?__twitter_impression=true

[WillowTree]

81. 1 - The courts have no jurisdiction in this....None. 2 - Bush v. Gore won't be overturned...ever.

But feel free to wish. That can be fun, too.

[SunSeeker]

84. Feel free to wish yourself. nt

[FBaggins]

65. Bush v. Gore wasn't a separation of powers issue

It was similar in the sense that federal courts are hesitant to overrule state courts in matters of interpreting state law/constitution... but there's no question that they have the power to do it when a federal constitutional issue is involved. In this case, the equal protection clause and how it applied to the lack of a single standard for how ballots should be counted statewide.

It's important to remember that while the decision to stop the recount efforts was 5-4... the determination that the state supreme court had erred and violated the equal protection clause was 7-2. The difference of opinion was over whether there was enough time to implement a single standard statewide... NOT whether the state court needed to be overturned.

Just as the Court can interpret the Constitution, they can interpret the rules set forth in the Constitution for the Senate

Nope... because the rules set forth in the Constitution for the Senate in this case simply says "Each House may determine the Rules of its Proceedings". Absent some other language (e.g., they can't change the standard to 3/4 supermajority), there is no way to read the above to mean "courts can change senate rules"

[SunSeeker]

79. Bush v. Gore absolutely was a separation of powers issue.

Last edited Wed Sep 26, 2018, 06:01 PM - Edit history (1)

SCOTUS interfered with how a state government vote count.

If the Senate did not properly follow its own rules, and/or violated other parts of the Constitution, then SCOTUS may have jurisdiction.

[FBaggins]

90. Hint: The "powers" in "separation of powers"...

... refers to the executive/legislative/judicial branch (at both the federal and state levels). There is no separation of powers doctrine between the federal judiciary and the state judiciaries.

The doctrine relating to that relationship is called federal preemption and/or the supremacy clause of the constitution.

SCOTUS can and will "interfere" with how states count votes if there's a federal issue involved (e.g., equal protection, Voting Rights Act, etc.)

[SunSeeker]

99. Hint: Bush v. Gore was not about state vs.federal judiciary.

It was a craven political move by the Supreme Court to stop a vote count (a state executive function) by proclaiming that counting votes amounted to "irreparable harm" warranting an injunction. That was cray.

Certainly asking a federal court to interpret the advise and consent clause is no more cray.

[onenote]

93. Bush v. Gore was a case involving the equal protection clause

Merkley's case dies in the first few pages when he contends that the advise and consent clause "requires an informed deliberative Senate process to review the qualification of a nominee for the position of an Associate Justice of the Supreme Court of the United States free of obstruction by the executive branch".

Actually, nothing in the Constitution says that. It says that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, 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."

It doesn't mandate or otherwise attempt to direct how the Senate engages in the advise and consent function. And it would be bizarre to say the least if every time the Senate considers (or fails to consider) a nomination, it would give rise to a potential federal court action. Many vacancies go unfilled, either because the president doesn't nominate anyone or because the Senate doesn't get around to acting on a nomination." This is true of both parties. And no court is going to get involved in second guessing how the senate does its business.

[SunSeeker]

98. Do you have a link to the actual filing? nt

[onenote]

100. here

https://www.scribd.com/document/389528289/9-26-2018-1240-PM-Complaint-Merkley-v-Trump-FINAL

[KPN]

41. Good for Jeff Merkley! Love my Senator -- so lucky to have him.

Merkley/Avenatti 2028!!!

[quakerboy]

43. Granting that this is grandstanding

Or, more charitibly, perhaps just trying any possible avenue to delay and allow the truth to come out,

If this somehow made it through to a ruling.. Wouldnt it then go on to the DC Circuit appeals court

Wherein Slimy K is a sitting justice?

[ffr]

44. Fighting fire with fire. Never hope for a conservative to do the right thing

always assume they'll put a knife in your back.

This is how we must fight, bringing it in from every angle.

[bitterross]

49. Not going to happen. Courts are not going to get involved.

No way the court is going to get involved with telling the Senate how to run itself.

Also, we don't want them to.

[red dog 1]

54. K&R

I wish him luck!

[pamdb]

55. Merkley

I really like him, have for awhile. I could see him nd Kamala Harris. I really like Mazie Hirono but she was born in Japan so that lets her out for Prep or VP.

[WeekiWater]

57. Attack from every direction.

Force them to use resources fending off the attacks.

Keep it up Democrats.

[0rganism]

60. it won't stop anything, but might slow things down a tad, help run out the clock

if we can make it through early October without a confirmed nominee, maybe we go into the next SCOTUS season with 4-4 or justice Kennedy still on the bench. i'm not sure what the protocol is for replacing a justice mid-season.

[tritsofme]

62. A vacancy can be filled at any time.

If the 8 justices were deadlocked on any cases they heard before the new member joined, they may rehear those cases later in the term.

This lawsuit won’t run any time out on the clock, it will be immediately dismissed.

[tritsofme]

61. Might be good PR? But the legal logic is embarrassingly stupid

He will be immediately laughed out of the courtroom.

[WheelWalker]

64. I'll go on record as saying this might have legs. The action will have been pleaded in a way that

would give the court jurisdiction. I expect Merkley would not file a frivolous action. Courts require actions to be well-founded in law or to rely on a good-faith extension of existing law.

[FBaggins]

67. What way CAN they plead it to give the court jurisdiction???

Mail the judge a certificate making him an honorary member of the US Senate?

[WheelWalker]

70. I take your questions to be rhetorical... To give you a serious answer I would have to

research the question. I bill by the hour. We can look to the original pleading to see how elements of jurisdiction and standing are alleged to be met in this case. I believe the law is what a judge says it is, until another judge disagrees. Reasonable minds can and often do disagree.

[FBaggins]

92. No point in wasting your time researching - There's nothing there

We can look to the original pleading to see how elements of jurisdiction and standing are alleged to be met in this case.

There really aren't any. Just that the matter arises under the constitution and thus the court has subject matter jurisdiction. Basically that by denying him documents that he wants, they are damaging his ability to provide advice and consent.

Obviously, that's nonsense in his personal case. He can't claim that he personally needed more information to make up his mind... because he actively opposed Kavanaugh from day one... but that's not the legal argument.

The legal argument is quite clear. The Constitution says that the Senate provides advice and consent. That doesn't devolve into an individual right to gather whatever a certain senator (or group of senators) wants. The Senate has the right... acting as a body. If an individual senator feels that he doesn't have enough information to make an informed decision... he has the privilege of voting "no".

I believe the law is what a judge says it is, until another judge disagrees.

Sorry... but that's just nonsense. Kavanaugh might agree with you, but if he said it out loud it would have been much easier to defeat his nomination.

The fact that courts can't weigh in on Senate rules is pretty settled law. They can hear a case accusing the Senate of not following their own rules... but they can't impose one on their own.

[Honeycombe8]

68. I don't know if there's a legal way to stop it, but GREAT to see the Democrats fighting for justice!

Way to go, Sen. Merkley!

[lovemydogs]

72. He deserves a medal! Applause at least.

We must let him know we love what he did

[mahatmakanejeeves]

74. "The @SenJeffMerkley complaint is hot nonsense. ... This is poseur stuff."

As much as I like to support obstructing Congress from doing things, the @SenJeffMerkley complaint is hot nonsense. The method by which the Senate exercises its constitutional advice and consent power is a classic non-justiciable political question. This is poseur stuff.

Link to tweet

Is this an absolute principle or a matter of where to draw the line? If hypothetically the Senate refused to do any judicial confirmations for, say, a couple of decades could the courts do nothing to compel them to do their job?

Link to tweet

That would be what voting is for.

Link to tweet

[volstork]

75. Seems like repubs always want to "ram things."

Just sayin'

[AncientGeezer]

77. D.O.A

[bucolic_frolic]

85. Democrats are fighting mad!! This is how you combat the GOP power grab

[dumbcat]

88. What if Congress passed a bill, and the President signed it

directing the Supreme Court to overturn Roe v. Wade?

That would be the equivalent to what Merkley is trying to get the court to do.

Some here give him an attaboy for at least trying to do SOMETHING. I think it just makes him (and us) look stupid.

[KPN]

105. Why and to whom does it make us look stupid?

Au contraire. It makes us look like we are serious about forcing the Senate to work the way it should. That's not stupid, that's being right.

Merkley has been all about Senate rules for most of his short Senate tenure. He is a pitbull about changing Senate rules to encourage rather than stifle debate as well as eliminate obstructionism. Look at his record.

If folks think Merkley is going to stop pursuing rule changes through any avenue available in order to ensure full and open debate they are fooling themselves. Oh, and many (maybe most) of us appreciate his efforts -- not just some.

[dumbcat]

110. You just illustrated it. n/t

n/t

[KPN]

111. Nice. n/t

[hlthe2b]

89. I'm not saying this was a "stunt", but I think the point was made regardless of legal validity

Merkley isn't an attorney, but surely someone would have advised him of the improbability of such a suit prevailing and injunction being issued. So, that leaves me wondering if this wasn't more to emphasize the point and the total inappropriateness of what the R's were trying to do.

[KPN]

109. That's exactly what it was, and purposely so.

Merkley’s no dummy.

[Azathoth]

108. Going nowhere

Senate business is Senate business. Their rules and procedures and the way they run their business is strictly their own affair. No court is going to stick their nose into it (that *would* be a Constitutional crisis).