Whitaker Appointment Faces Supreme Court Challenge

News  |  Nov 16, 2018

A Nevada man with a lawsuit pending before the U.S. Supreme Court inadvertently is offering opponents of Matthew Whitaker's appointment another chance to contest it. 

Barry Michaels' case – filed in June – concerns a convicted non-violent felon's right to own a gun, and the defendant is former Attorney General Jeff Sessions

NBC News

The challengers asked the justices to rule that the name on the case should now be Rod Rosenstein, who they said is actually the acting attorney general.

Whitaker cannot be in the position, they contend, because he wasn't confirmed by the Senate. Their Supreme Court filing said the Constitution requires confirmation for a cabinet-level job, even an acting one. And a separate federal law provides that the deputy attorney general automatically takes over when the attorney general's office is vacant, they told the justices.

Tom Goldstein, a Washington lawyer who filed the motion Friday, said this appears to be the first time such a request has been made, asking the justices to rule on the identity of the correct defendant before the court has decided whether to hear the case at all.

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Goldstein was the lawyer behind a similar challenge to Whitaker's appointment that was filed Tuesday in federal court by the state of Maryland.

Matt Whitaker faces new challenge in Supreme Court (NBC News)