Going Around the Senate

The death of Justice Antonin Scalia has left a vacancy on the United State Supreme Court, which must be filled using the process set forth in the United States Constitution. As most students who have taken one of my classes should know, this process calls for the President to nominate a replacement and the Senate to vote on whether that person should take the vacant seat. This classic example of checks and balances between the branches of federal government seems to set up a situation where a court vacancy cannot be filled without the Senate playing along. In fact, the Constitution says just that when it gives the Senate the power to confirm the President's nominee.

So what happens when the Senate refuses to play along? Up until early this year, the Senate has never absolutely refused to engage in the confirmation process. With only eight months until the next President is selected, leaders of the Senate have said that President Obama's nominee for the vacancy will not be considered by the Senate, and it should be up to the newly elected President to fill to vacancy. While this move is unprecedented, it probably is constitutional. Some, however, have suggested that the President might be able to simply skip the Senate and fill the vacancy, claiming that the Senate has waived its right to consent by not even engaging in the confirmation process. The blog Constitution Daily takes on this argument in a very interesting and worthwhile post.