It really befuddles me why the Republican-controlled Senate’s refusal to give Merrick Garland a hearing is so controversial. Even historians and legal scholars are foaming at the mouth over “constitutionalists” such as Ted Cruz acting in such an “unconstitutional” manner. All in the name of winning back the White House and nominating someone such as Neil Gorsuch.
The cause of my confusion is that there is really nothing to be confused about. The Constitution is quite clear on this matter. The United States government functions according to separation of powers and a series of checks and balances. The Senate confirmation process for the Supreme Court is part of the check on both presidential and judicial power, which necessarily entails misuse, overreach, and activism, among others. Article II, Section II, Clause II of the Constitution states:
The President…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….
There is nothing that requires the Senate to, A) give a nominee a hearing, or B) confirm said nominee. In fact, quite the opposite. Indicated Gouverneur Morris, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” In other words, the “buck stops” with the President in selecting quality individuals for such important positions, in Harry Truman’s words, but the Senate would assure the soundness of any nominee.
Now, this arrangement was ultimately implemented with a radically different conception of the Senate than exists today, and that seemingly makes a difference. The Senate was originally designed to comprise the nation’s best, most educated, most cultured, most worldly (in the sense of “knowing the world,” not materialism) and be a bulwark against the populism of the House. However, with the direct election of Senators today one can plausibly make the argument this intention has ceased to be (if it ever did, except in theory). Perhaps this explains the nettlesome nature of this aspect of the Constitution, as well as others such as the Electoral College; meaning, we are dealing with a system of government intended to operate one way, according to philosophies and mechanisms modern Americans are aghast over, yet, their vestiges remain in altered form. Because their vestiges remain, but only in altered form, there is a dissonance between their original design and purpose, and how they operate, or are perceived to operate, today.