As all sensible men instinctively do, I concur with John Yoo’s opinion below on the legal questions related to President Obama’s nomination of Merrick Garland to the Supreme Court.
As a purely political question, I do not see how the president, or Mrs. Clinton, gets around the simple facts of the case. If it is morally permissible for President Obama to employ a maximalist interpretation of his powers in an explicit attempt to act legislatively in place of Congress — for instance, by attempting to impose through executive order an amnesty for illegal immigrants that Congress has rejected — then it is equally permissible for Congress to employ a maximalist interpretation of its own powers and stymie the executive branch. Obama may have technically been within his powers all this time (though I very much doubt that even that is true) but he unquestionably has done violence with malice aforethought to the constitutional order, attempting to arrogate to himself legislative powers. It bears repeating that he has been absolutely explicit about this, his argument (“argument”) being that if Congress will not act as he wishes it to, he will act in its place.
The predictable, and predictably stupid, rhetorical line from the Democrats now goes: “The Senate should do its job (and give the president whatever he wants).” In truth, the Senate is doing its job by stopping him. The Senate exists to provide a check on the democratic passions of the House and on the imperial pretensions of the presidency. Mitch McConnell is absolutely right to make use of the procedural powers granted him to check the White House in this matter. He should have begun doing it years ago, in fact.
But give the president credit for his gracious timing: He could have acted yesterday, forcing the Senate to take a stand against the would-be imperator on the Ides of March, which might have been uncomfortable.