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The lawsuit challenge Senate leaders' decision not to act on Merrick Garland. | AP Photo Lawsuit challenges Senate inaction on Garland

A citizen gadfly in Maryland has filed a federal lawsuit challenging Senate leaders' decision not to act on President Barack Obama's nomination of Judge Merrick Garland to the Supreme Court.

Liberal activist Brett Kimberlin filed the suit against Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley late last month in U.S. District Court in Greenbelt.

"Defendants have waived their right to advice and consent by (a) stating publicly and on the Senate floor that they refuse to advise and consent on the nomination of Merrick Garland, (2) putting pressure on other Republicans not to advise and consent, and (3) refusing to advise and consent," the suit asserts. "Plaintiff is entitled to a declaratory judgment against Defendants stating that they have waived their right to advise and consent."

The suit seems to be a longshot, in part because courts are often reluctant to wade into disputes between Congress and the White House and in part because there is debate about whether the Constitution really does obligate the Senate to act on Obama's nominee or whether the Republicans' current refusal to act is one of the responses the Constitution contemplates.

Spokespeople for Garland and Grassley did not respond to requests for comment on the case.

The White House declined to comment, but White House Counsel Neil Eggleston has publicly endorsed one of the central contentions of the new suit: that the Senate is required by the Constitution to respond to Obama's nomination of Garland.

"It’s our view that the Constitution is worded in a way, I think, that makes it mandatory," Eggleston said at a POLITICO Playbook Breakfast last month. "I know the Republicans say it’s not mandatory and they can do whatever they want. But it says the president shall nominate and with the advice and consent of the Senate shall appoint…I read that as saying he nominates and they have an obligation to give their advice and consent."

"We think the Constitution obligates them to provide advice and consent as the language says," Eggleston added.

Asked if the Constitution similarly requires that Obama make nominations for judicial vacancies—some of which have been open for years without nominees—the White House counsel said it does.

"He’s continuing to exercise his Constitutional obligation to nominate people….The president does have an obligation, I think, to nominate," Eggleston said. He said Obama was moving forward with nominations for some of the longstanding vacancies even when the White House had been unable to obtain the customary consent of home-state senators.

Regardless of what the Constitution may require, it's far from clear whether a court can remedy any failure on either side. Even if it could, a citizen lawsuit may not be the way to do it.

The suit filed last month raises obvious questions about Kimberlin's standing: whether he has a personal stake in the membership of the Supreme Court sufficient to pursue a lawsuit. Kimberlin says he has three other federal suits pending and "has a right to have his cases considered by the full nine Justice Supreme Court." That may not be enough of a personal interest to allow the case to proceed.

Kimberlin also has a checkered and politically colorful background. In the 1980s, he was sentenced to more than 50 years in prison for a string of bombings and other crimes. He achieved national notoriety while in federal prison in 1988 after he alleged he had sold marijuana to Vice Presidential candidate Dan Quayle. Reagan administration officials cut off media access to Kimberlin, fueling suspicion about a cover-up.

Kimberlin was paroled in the 1990s. He now runs a non-profit group called Justice Through Music, the suit says.

The new suit has been assigned to Judge George Hazel, an appointee of President Barack Obama.

