On March 16, 2016, President Barack Obama nominated Merrick Garland to serve as an Associate Justice of the United States Supreme Court to fill the vacancy created by the death of Justice Antonin Scalia. The same day, Senate Majority Leader Mitch McConnell took to the Senate floor to announce that lawmakers from his Republican Party that would not vote on or consider the nomination of Judge Garland. On April 5, 2016, McConnell stated publicly that there would be no “hearings or votes” on the nomination of Judge Garland. On April 12, 2016, Senator Charles Grassley stated publicly that there would be no hearings in the Judiciary Committee on the nomination of Judge Garland. The Republican Senate has made clear that they will take no action on the nomination of Judge Garland.
The Appointments Clause of the Constitution, Article II, Section 2, Clause 2, provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court….” Clearly, the President has two powers: the power to “nominate” and the separate power to “appoint.”
The Senate has the power of advise and consent of the President’s nomination. The Senate has waived its right to “advise and consent” by refusing to consider Judge Garland’s nomination for more than 240 days.
No previous Supreme Court nominee has waited more than 125 days to be appointed, and the average time between nomination and appointment throughout our 240 year history is 25 days.
President Obama should appoint Judge Garland now.