Chuck Grassley

Daniel Rubin wants the Supreme Court to tell Senator Chuck Grassley (R-Iowa) to #DoYourJob, but, you know, in a more lawyerly way.

Invoking the court’s original jurisdiction, Rubin filed a petition for mandamus asking the high court to order the Senate Judiciary Committee Chairman to convene confirmation hearings for President Obama’s Supreme Court nominee, Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, in In re Rubin, No. 16-103.

Hmm… The Supreme Court is asked, in the first instance, to issue a writ of mandamus to a government official in order to advance a judicial nominee ... .

Ok, I’m pretty sure I’m having another one of my 1L ConLaw nightmares.

Because in the landmarkiest of all landmark cases, Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall wrote that William Marbury was entitled to a writ of mandamus, requiring Secretary of State James Madison to deliver Marbury’s commission as justice of the peace for Washington D.C.

President John Adams signed the commission in the final hours of his presidency, and the commission was affixed with the seal of the United States. But somehow the commission wasn’t actually delivered.

The incoming Secretary of State refused to deliver the commission. So Marbury sued to get it. (I tooooootally remember all of this from my constitutional law class and not from Radiolab’s excellent podcast “More Perfect.”)

But even though Madison was entitled to the writ, he didn’t get it. That’s because the Supreme Court didn’t have original jurisdiction over the case, Marshall said. Marbury should have sued first in another tribunal.

Rubin—who tells us only that he is “a citizen of the United States and a resident of the State of New Mexico”—says the court has original jurisdiction to issue a writ here because Grassley is a “public minister.”

In particular, Article III, Section 2, Clause 2 of the Constitution gives the high court original jurisdiction over “all cases affecting ambassadors, other public ministers and consuls.”

So, Supreme Court problem solved! Right?

Probably not. 

Among other issues, Ex parte Gruber, 269 U.S. 302 (1925), seems to foreclose Rubin’s argument.

There, the Supreme Court said Article III, § 2, cl. 2’s grant of original jurisdiction “refers to diplomatic and consular representatives accredited to the United States by foreign powers, not to those representing this country abroad.”

So despite several creative attempts to get Garland’s nomination through the Senate without Republican support, it appears the political process—not the judicial one—will have to take care of this problem.

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