Article II, Section 2, of the Constitution declares that the President of the United States “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” Barely ten days after the death of Justice Antonin Scalia, all of the Republican members of the Senate Judiciary Committee have signed a letter stating their intention to “withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy.” Claiming the “necessity to protect the will of the American people,” the Republicans stated that the Judiciary Committee “will not hold any hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”

Although the Republican members of the Judiciary Committee rely solely on Article II, Section 2, as their authority to withhold consent, there is no language in the constitution that authorizes the Senate itself to refuse to consider the president’s nominee or to withhold both advice and consent. In spite of their Article VI oath to support the constitution, these senators are shirking their duty under the constitution to consider the president’s (as-yet unnamed) nominee. Justice Scalia, revered as a constitutional originalist, must be rolling in his grave.

There is no legitimate advice that can be given by the Senate without full and fair consideration of the qualifications of a nominee. There is no meaningful consent—or withholding of consent—to appointment of a nominee by a Senate that deliberately chooses to dwell in ignorance of the knowledge and experience of the person to whom the Senate’s consent will be given or denied. Sticking their fingers in their ears and squeezing shut their eyes may be a political strategy of some mindless sort, although it might well be considered “disorderly Behaviour” and merit expulsion under Article I, Section 5.

The Republicans’ litmus test is that a nominee must not be selected by the current president. To justify this absurdity, the Republicans must amend the constitution on the fly. The president shall “hold his Office during the Term of four Years,” except with respect to nominations for Judges of the supreme Court, in which case, the president’s term shall be only three years (Article II, Section 1, as amended). The president “shall nominate, and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,” unless a majority of senators be not of the same political faction as the president, in which case, the Senate may disregard any such nominee (Article II, Section 2, as amended). “The Senators…shall be bound by Oath or Affirmation, to support this Constitution,” except those Senators who be not of the same political faction as the president, in which case, such Senators may support this Constitution when convenient to their political purposes (Article VI, as amended).

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