Our friend Rick Garnett has an op-ed on CNBC about the nomination of Merrick Garland to the Supreme Court:
Some have suggested that the Constitution somehow requires or legally obligates the Senate to hold hearings and vote on Judge Garland's nomination. It clearly does not. The president has the power and the right, for his entire presidency, to nominate candidates to fill judicial vacancies; the Senate has the power, in turn, to delay or decline hearings and votes. The federal government created by our Constitution has three different branches, which check and balance each other in various ways. When the branches disagree, more often than not the disagreements are worked out politically, rather than legally. ...
The court has often operated with fewer than nine members many times in our history and, more than a few times, presidents and the Congress have jockeyed, struggled, and contested over vacancies and confirmations. It is understandable that many regret the politicization of the court's membership but it is also understandable, given the role that the court now plays in our democracy, that many people care, a lot, about the court. There can be little doubt that, if the president were a Republican and the Senate were controlled by Democrats, things would proceed similarly to the way they are now.
