Professor Alan Dershowitz wants Senate Democrats to ask Neil Gorsuch during his confirmation hearings about the Senate’s treatment of Judge Merrick Garland, former President Barack Obama’s pick for the Supreme Court vacancy to which Gorsuch has now been nominated. Garland’s nomination was ignored — given no hearings or votes on the Senate floor. Professor Dershowitz thinks Gorsuch would find the question “embarrassing” because ” if Gorsuch were to answer that probing question honestly, he would be challenging the legitimacy of his own nomination.”

It is embarrassing because as a constitutional originalist, he must certainly agree that the Senate has a constitutional obligation either to consent or deny consent to a presidential nominee. There is nothing in the text of the Constitution or in its original purpose that would allow senators simply to refuse to perform their constitutional obligation, in the hope that the next president will be of their party.