"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." [emphasis added]As provided in the Constitutional provision cited above, the President has the power to NOMINATE and also to APPOINT Supreme Court Justices in concert with the middle provision "by and with the Advice and Consent of the Senate". Nomination and appointment are two SEPARATE acts between which is sandwiched the "advice and consent" clause.
What would happen now if President Obama were to go on and actually APPOINT the previously nominated Merrick Brian Garland to the vacant seat on the U.S. Supreme Court?
The only recourse that the Senate of the United States would have would be to bring the case to that very same U.S. Supreme Court and to argue that the appointment is unconstitutional and thus null and void due to the failure of the President of the United States to obtain the constitutionally required "advice and consent" of the Senate.
However, the Senate would be on very shaky legal footing.
The President would argue that he had fulfilled his Constitutional duty as President, had nominated Garland to the vacant position and had submitted that nomination to the U.S. Congress for its duties of "advice and consent", but that the Congress had publicly proclaimed and categorically so, that it would not carry out its Constitutional duties of "advice and consent" REGARDLESS of the NOMINEE, i.e. by not having any contact with the nominee, by not holding any hearings on the nomination, and by not voting on the nomination to determine if the required number of Senators consented to the nomination or not.
In other words, the President could argue that the Congress WAIVED the requirement of advice and consent by categorically and publicly declining to fulfill its Constitutional duty -- and had done so for publicly proclaimed POLITICAL rather than Constitutional reasons.
Regardless of the political leanings of the individual Justices, they would be hard-pressed to support the Senate's actions as a matter of Constitutional law.
The Senate Majority Leader, Mitch McConnell, has gone on record as saying that the reason for the Senate's declining to exercise its Constitutional duties of "advice and consent" is to "Give the people a voice in filling this vacancy", something which would allegedly occur by waiting until the next President is elected. See Senator Mitch McConnell on Merrick Garland Supreme Court Nomination at C-Span.
The Constitution says NOTHING about Supreme Court positions being popular quasi-elective offices whose filling depended on prospective political elections. Rather, the procedure is clearly provided in Article II, Section 2, paragraph 2 of the United States Constitution. The people have already had their say by electing the President that they currently have. There is no issue here of the people's voice being somehow magically activated by the election of the next President, as if that voice had already not been heard previously.
Moreover, McConnell is wrong in saying that the Senate is "withholding" its consent. That is a nicely twisted falsehood. Rather, the Senate is not acting at all to determine if Senate consent is there or not. That is an entirely different matter, because the Constitution states that BOTH "advice and consent" are duties of Congress in the intermediary stage between nomination and appointment of a Supreme Court Justice. The Senate has DENIED those duties REGARDLESS of the NOMINEE, a clear Constitutional usurpation.
If the Senate WAIVES those duties by publicly proclaimed inaction, and for reasons of pure politics, seeking to make Justices quasi-elected judges, thus failing to abide by the clear provisions of the U.S. Constitution, then the Senate should be barred from raising the argument that the appointment is unconstitutional and/or that it is therefore null and void, because the Senate itself has failed to "withhold" its consent from the nominee by a proper advice and consent, and by a negative Senate vote, a result which is by no means secured until the vote is actually held.
Should the Senate argue that it can determine WHEN it is to fulfill its Constitutional duties, even if it takes years, because the Constitution sets no specific time limit, then the Supreme Court in our opinion should hold as an axiom of law, that Constitutional government DUTIES are to be fulfilled within a reasonable period of time, which in the case of confirmation or non-confirmation of Supreme Court Justices to the Court, has previously been 125 days at the maximum and has been an average of 71 days for current Supreme Court Justices. To avoid any game-playing and trickery on the part of the Senate, the Supreme Court should set a limit of 90 days. Period.
The Senate could still vote against the nominee, but it can not withhold the process of its "advice and consent", which the Constitution requires.
Those who disagree with the above scenario should consider the following hypothetical: Hillary Clinton wins the upcoming election and one of the conservative Justices passes away at the same time. The Court then has a more-or-less liberal majority and needs no more Justices, so that no more nominations to the Court are made by the new President for the duration of her administration. What then, dear obstructionists?
Frankly, we do not think that President Obama will take the option discussed here because he has simply been a very weak President in the last years of his Presidency and probably wants to go out without any greater catastrophes happening, especially a face-to-face Constitutional battle among the three branches of government. But it might be the right thing to do for the country and a proper education of its citizens about the U.S. Constitution and the impartiality of the Judiciary.
P.S. If this scenario ever actually happened, what would be the position of Justice Garland in deciding the case? Would he have to recuse himself? Or could he also cast his vote on the merits, especially if the Senate is to be held barred from bringing the action for reasons of its own WAIVER. After all, the case is not about Garland but about the publicly declared inaction of the Senate in refusing to fulfill its Constitutional duties, REGARDLESS of the NOMINEE, which is an entirely different matter.