ANALYSIS: TRUE. The Supreme Court Was “Politicized” Long Ago.

However unusual the sequence of events leading up to Gorsuch’s confirmation may seem, the reality remains that the Constitution requires presidents to obtain Senate consent before appointing a nominee—a concept dating back at least as far as Marbury v. Madison, which stated that presidential appointments “can only be performed by and with the advice and consent of the Senate.” (emphasis added).

Barack Obama was not “entitled” to fill the vacancy: he was entitled to nominate someone whom the Senate was then free to confirm or reject out of hand. Should the people who put the Senate in Republican hands after the 2014 midterms—partly, I suspect, out of concern for the ideological makeup of the Court—not have been able to enjoy the benefits of their electoral victories? Greenhouse seems to think so.

The Senate’s role is to advise and consent. Their advice to Obama on the Garland nomination was “take a flying leap, Mr. President,” which was completely within their prerogative.