Estrada: Is The Senate Guilty of Laches? What do you think?

3-8-02 | jmstein77

[jmstein7]

Estrada: Is The Senate Guilty of Laches? What do you think?

 

Here is a rather far-fetched theory I’d like to run by all the FReeper lawyers and laymen regarding the debate over the confirmation of Estrada. I look forward to your thoughts and comments.

 

According to the Supreme Court, “[The]'Doctrine of laches,' is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as bar in court of equity.” Illinois v. Kentucky, 500 U.S. 380, 388, 111 S.Ct. 1877, 1883, 114 L.Ed.2d 420 (1991)

 

Now, here is one theory that comes to mind in re the confirmation of Estrada. I know… this is a huge stretch.

 

If persons subject to the jurisdiction of the D.C. Circuit court of appeals reasonably believe that the vacancies on the circuit court are denying them access to timely, substantial justice, then they may be able to invoke the doctrine of laches against the Senate. Again, this would really be pushing it.

 

Anyway, if they reasonably believe that the Senate’s unreasonable delay in exercising their right of advice and consent is resulting in material prejudice – the denial of the timely, substantial justice they are guaranteed – then there is an argument that the Senate is guilty of laches.

 

The remedy would be specific relief in the form of compelling some sort of timely resolution of the issue. I have no idea exactly what type of specific remedy could be fashioned, as it would be unprecedented. Mandamus? Again, a huge stretch.

 

On the other hand, there is precedent that restricts invoking common law laches against government agencies in a way that prevents such agencies from discharging their statutory duties. However, I don't really know of any case on point – i.e. invoking laches against a legislative body of the federal government. There may well not be any law in that area. And, also, the idea here would be to compel the unreasonably hamstrung government to discharge its statutory duties. This distinguishes the instant issue from the above precedent. So, who knows?

 

What do you think? Comments?

[jmstein7]

BTTT

[Salvation]

**Anyway, if they reasonably believe that the Senate’s unreasonable delay in exercising their right of advice and consent is resulting in material prejudice – the denial of the timely, substantial justice they are guaranteed – then there is an argument that the Senate is guilty of laches.**

No attorney here, but I say, "Yes".

[jmstein7]

Ping!

[reformed_democrat]

“[The]'Doctrine of laches,' is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as bar in court of equity.”

That seems pretty straightforward to me.

Of course, my degree is in Psychology, not Law, so my thinking may not be fuzzy enough . . .

[jmstein7]

LOL!

[steplock]

I forwarded the question to the dim-witted (D) Arkansas Senators. Blanche Lincoln & Marc Pryor. Do you think they might understand?

[jmstein7]

Good idea! They just might.

[Cboldt]

It's a non-starter. The idea is that a person can't acquiesce to a certain condition for a long time, then come out and assert that the status quo is no longer satisfactory.

[jmstein7]

It should be noted that laches is an equitable defense. However, maybe the Senate's failure or omission to act can be construed as constructive action against the persons subject to the jurisdiction of the D.C. Circuit Ct. of Appeals? I suppose one could make that argument. Maybe someone has another theory?

[Cicero]

I would tend to apply this doctrine in another way. The Constitution says the Senate has the right to "advise and consent" on judicial nominations. That implies the right to vote candidates down, which has often been done. What is unclear, as many freepers have pointed out, is whether it implies the right to filibuster candidates, which raises the bar from 50 votes to 60. Does that infringe on the President's constitutional right of appointment?

IF the Republican Senators allow it to happen, or perhaps if the President allows it to happen, then they will be neglecting to assert their constitutional rights. And if they neglect to assert their rights for a long enough time, then by precedent the right to filibuster against judicial candidates may become law.

A similar case can be made about, e.g., the constitutionality of the income tax. Whether or not it is constitutional has by now become moot. The income tax has been the law of the land for such a long time that the Supreme Court would be very unlikely to overturn it--especially since it pays their salaries.

The Supreme Court generally respects the right of the other branches to set their own rules, as long as these rules are reasonable and not plainly unconstitutional. So, unless the Republicans either push this nomination through or bring the case to the Supreme Court, they are in danger of seeing the rules change under them.

[only1percent]

Laches is a common law doctrine of very narrow application. It used by a "respondent" (i.e. defendant) in an "equitable" action to persuade the court that the "petitioner" (i.e., defendant) is not entitled to relief because he waited to long to seek it. Equitable actions are (basically) civil actions seeking the court to compel the respondent to do, or not do, something, rather than seeking a judgment of money damages. What you get if you win is a court order -- a mandamaus (forcing the respondent to do something), a TRO or an injunction (forcing the defendant not to do something). If the respondent doesn't do as ordered (or does as ordered not to do) the judge can send him to jail for contempt.

Laches has no application in the context of Estrada for two reasons.

First, of course, there is no equitable petition at stake here. Only the respondent to a petition is entitled to assert laches. Estrada could, possibly, seek a court order compelling a vote on his nomination, but in so doing he would be the petitioner, not the respondent.

Secondly, of course, there can be no such petition. Common law is the lowest hierarchy form of law, and is pre-empted by express constitutional, legislative and regulatory enactments. The Constitution grants the Senate the right (1) to furnish advice and consent to appointments and (2) to adopt and enforce, as it sees fit, its own rules. Pursuant to that authority, the Senate adopted the filibuster rules.

Estrada will be confirmed, if at all, when five more Democrats agree to let his nomination come to a vote, and not before, or those Democrats lose their seats and are replaced by more favorably inclined Senators.

[jmstein7]

In that case, they would have to use an alternate theory, as I don't think that laches can be used where SCOTUS has original jurisdiction.

[aristeides]

No court would hold that persons subject to the jurisdiction of the D.C. Circuit have suffered the kind of cognizable harm that is required for them to have standing to bring a suit. Even if some court did hold somebody had standing, I am sure they would hold the issue of the filibuster to be a nonjusticiable political question and refuse to rule on the case.

The Constitution says that, without the consent of the Senate, a presidential nominee cannot be appointed. The Senate surely has the right to deny the nominee appointment through a negative vote. I see nothing in the Constitution that says the Senate cannot also deny consent -- and thus appointment -- through the action of the rules of the Senate, which the Constitution empowers the Senate to adopt.

The present filibuster is an objectionable violation of Senate tradition. I see nothing in it that renders it unconstitutional.

[jmstein7]

Somewhere there must be some precedent defining the scope of “advice and consent”. If there was some class of citizen that had standing (I’m sure someone must have a plausible, if not a little far-fetched, theory), then a suit for mandamus could be initiated. It would probably be a loser, but laches could be invoked on appeal.

[hgro]

A better idea--, Elect 10 more Republican Senators so we have a majority of 61!

[jmstein7]

More absurd:

If Bush were to just SEAT Estrada, absent advice and consent, the there would be a suit, possibly against both Bush and Estrada, to challenge the seating. The defendants could join parties that had standing, which could, in turn, boot Bush and Estrada from the suit. Somehow, the Senate, if not already a party, could be joined as a defendant or third-party defendant. THEN laches, amongst other theories, could be invoked. But, it would take some serious stretching of the FRCP (and a good measure of chutzpah). I’m only a 1L, but it seems that anything is possible these days :)

[jmstein7]

I meant to say that the Senate could be joined as a PLAINTIFF or 3rd part PLAINTIFF (not DEFENDANT). Sorry... brain fart.

[1rudeboy]

Interesting legal argument, which would be dismissed for lack of jurisdiction.

[jmstein7]

Bring it in D.C. District Court; it is certainly an FQ, and that court certainly has IP jurisdiction.