Compounding ludicrous claims that Senate Republicans “stole” Merrick Garland’s seat on the U.S. Supreme Court from former President Obama and Democrats, here’s some flawed history:

What the Senate did to Merrick Garland in 2016, it did it to three other presidents’ nominees between 1844 and 1866, though the timelines and circumstances differed. Those decades of gridlock, crisis and meltdown in American politics left a trail of snubbed Supreme Court wannabes in their wake. And they produced justices who — as Neil Gorsuch might — ascended to Supreme Court seats set aside for them through political calculation.

Gavel-tap: Professor Orin Kerr.  Read the whole thing.

Then, read U.S. Const. art. II, § 2, cl. 2:

[The President] shall . . . nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . .

(Emphasis added.)  Then read U.S. Const. art. I, §§ 3, 5.

Under the Constitution, the President can “nominate” anyone he wants to the bench of the U.S. Supreme Court.  That nominee does not become appointed to the bench until the President obtains “the advice and consent of the Senate” because, as the Constitution says expressly, the nominee becomes an appointee “by” such advice and consent, in addition to “with” it.  If a nominee lacks advice and consent, the nominee does not become an appointee.  This is an express veto power over presidential nominees to the U.S. Supreme Court accorded to the Senate by the very plain language of the Constitution.

Furthermore, nothing in either the section of the Constitution establishing the Senate and its powers, or in the section describing the rules of the House and Senate, does the nation’s framing charter oblige or otherwise require the Senate to give its advice on or consent to a president’s nominee to the U.S. Supreme Court.  Senate Republicans thus did not “steal” a seat from Merrick Garland, President Obama, or the Democrats.  They simply declined to consider him at all, which they are well within their prerogative to do under the Constitution.  (Whether this is good governance is another matter altogether, and I decline at this time to expound up on it.)

It’s a straightforward analysis, but I guess it provides insufficient opportunities for graft, which is why we keep hearing so much nonsense about “stolen” Supreme Court seats.

Update

Professor Adler joins the chorus.