In an ABA panel discussion yesterday in which I took part, Kathryn Ruemmler, who served as President Obama’s White House counsel from June 2011 to June 2014 candidly acknowledged that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the Scalia vacancy.
There is no reason to think that Ruemmler would have recommended a course of action that she regarded as unconstitutional. So Ruemmler’s remark also shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on the Garland nomination.