Willful Refusal to Act

Since the Constitution does not set the number of Supreme Court justices, it has changed over the years - for political expediency, of course.  As Herr Trump would say: It's rigged.

But, as long as the number is set at any figure - and it is set by Congress - then Congress should be required by law to act in a reasonable length of time when there is a vacancy.  If they can't confirm by a majority vote within that time, then the Court should lose that seat for a certain length of time.  No doubt there's a better way to do it, but simply refusing to consider a presidential nomination is BS.  But then, most of Congress these days is BS.

Did the President [...] miscalculate when he chose [63-year-old Appeals Court Judge Merrick] Garland [as his nominee for the Supreme Court in March]?

[...]

[Garland's] credentials are impeccable and he's a powerful thinker. His admirers are legion, and include conservatives like Utah Sen. Orrin Hatch.

[...]

Obama admitted openly that Garland was a consensus candidate. The President wanted someone Senate Republicans couldn't refuse.

  CNN

Then he should have picked another Scalia.

Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.

[...]

[The Constitution] provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.”

  WaPo

I did note that, but I also noted that it says, "with the ... consent of the Senate."

What does that mean, and what happens when the Senate does nothing?

[...]

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.

So the least the Senate could do is pretend to mull it over.  But that's not what they've done.  The minute Antonin Scalia died last February (praise be), Mitch McConnell announced there would be no consideration of any nominee until after the November election.

As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

[...]

The president has nominated [Merrick] Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date?

Indeed. What date? Shouldn't he have already done that if he were going to? Was it okay for him to simply make vague threats about the downfall of democracy and wait to find out that Donald Trump would be the president, contrary to his expectation, before claiming the right to appoint without Senate approval?

The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

Ninety days? It's already been nine months.

I would be very surprised indeed if Obama bucked the GOP at this date. That would be a rare act on his part after eight years of appeasing them. But if he did, he should yank that nomination and put a young, ultra-liberal judge on the bench as an object lesson to them.

...but hey, do what you want...you will anyway.