According to legal scholars he could if chose to. One of them is Adam J. White, a research fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. He is also a contributor to The Weekly Standard, which in February 2016 published an article by him with the no-nonsense title “The Constitution Does Not Require the Senate to Vote on a Nomination.”
What followed was equally abrupt and to the point:
Article II, Section 2 of 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.”
It could not be simpler. The president nominates someone. If the Senate gives its advice and consent, then the president can appoint him. But nowhere does the Constitution say that the Senate is required to act on the president’s nominations. The Framers certainly didn’t understand the Senate to bear such an obligation. And the Framers who drafted that document certainly didn’t say that the Senate bore such an obligation.
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In other words, to quote White earlier in the article, there is no “clause that says the Senate must vote on, let alone confirm, a President’s nominee.”
White is not alone in this contention. Ilya Somin, who also teaches law at George Mason, had a column in the Washington Post during the same time period. The piece is dated February 17, which is four days after Justice Antonin Scalia’s sudden death. Following the announcement of the justice’s passing, the HuffPost writes:
President Barack Obama on Tuesday vowed to pick an indisputably qualified nominee for the Supreme Court and chided Republicans who control the U.S. Senate for threatening to block him from filling the pivotal vacancy.
Obama told senators he has a constitutional duty to nominate a new justice after Saturday’s death of conservative Justice Antonin Scalia and reminded them of their constitutional obligation to “do their job” and vote to approve or reject his nominee.
Senate Majority Leader Mitch McConnell has said the seat on the nation’s highest court should remain vacant until Obama’s successor takes office in January so voters can have a say on the selection when they cast ballots in the Nov. 8 presidential election.
“I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there,” Obama said.
“The Constitution is pretty clear about what is supposed to happen now,” Obama, a former constitutional law professor, told a news conference at the close of a two-day meeting with leaders from Southeast Asia.
If Obama had been less amused and more knowledgeable about the Constitution, he might have been aware that “the Constitution does not require the Senate to give judicial nominees an up or down vote,” as Somin titles his piece. He could conceivably have done an end run around the “advice and consent” language, which Somin submits is also unclear, and simply have selected Merrick Garland as a Supreme Court justice.
It appears the same option is now available to Obama’s successor should he choose to exercise it. Will he?