Senate Has No "Constitutional Duty" to Consider or Confirm a Supreme Court Nominee

Today, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court vacancy left by the untimely death of Justice Antonin Scalia, claiming that the Senate had a "constitutional duty" to hold hearings and vote on Judge Garland's nomination.  This is consistent with statements by Senate Democrats, many of which contradict their previous statements about nominees submitted to the Senate by Republican Presidents.

The Washington Post's analysis of that claim concluded that it contained significant factual error (3 out of 4 Pinnochios) (emphasis added):

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term. 

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation. 

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

In reacting to Judge Garland's nomination, RNLA leaders agree that the Senate is in control of its own process and of the decision whether to consider a nominee:

RNLA Chair Randy Evans: “The American people should have the opportunity to weigh in on such an important and pivotal nomination. . . . Democracy works best when government officials, including the President, let the people be heard.” 

RNLA Judicial Affairs Vice President Stefan Passantino: “While our president had the constitutional right to nominate Merrick Garland, so too does the Senate have the right to withhold consent in a presidential election year.” 

The RNLA thanks Senate Republicans for their continued devotion to principled defense of the Constitution by not considering a nomination to the Supreme Court that could negatively transform the Court.