I see three potential paths for the Senate in dealing with the nomination of Judge Merrick Garland to the Supreme Court: (1) Confirm Justice Garland; (2) Vote not to confirm; (3) Do nothing. The first two need no further comment.
The third has interesting consequences if carried as far as it could ultimately go. If the Senate never votes on Garland, the court would continue with only eight justices. If the Senate never votes on any future nominee, the court would ultimately cease to exist as a viable institution after all the justices die.
After the nomination sits for a reasonable time with no “advice” and/or “consent” from the Senate, the president should unilaterally appoint Garland to be a member of the Supreme Court.
Ultimately the Court itself would have to rule on whether the appointment is within the president’s power under the circumstances. The pro-nomination argument would include the position that the president cannot sit idly by while the Senate destroys the Supreme Court.
Paul Siegel, Davie