Martha Minow and Deanell Tacha, the deans of Harvard Law School and Pepperdine School of Law, respectively, are frustrated at the Senate’s refusal to consider Merrick Garland, President Obama’s nominee to the Supreme Court. They claim that “two-thirds of Americans want the senators to do their job,” and the constitution is clear about what that job is, for “Article II of the Constitution is not ambiguous. It directs that the president ‘shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.'”

This argument from authority is hardly convincing. As Seth Tillman notes This precise issue was addressed by the Supreme Court in Marbury v. Madison. “Chief Justice Marshall wrote that the President’s nominating a person to an office is ‘completely voluntary,’ not a duty, much less a constitutional duty.”