I want to try to draw an analogy between the Senate’s refusal to give Judge Garland a hearing and President Obama’s use of an executive order to implement immigration reforms.
What is the difference between an executive order and a statute? That’s pretty obvious–the former does not bind the next President while the latter does. What is the difference between the Senate’s refusal to vote on a Supreme Court nominee and a statute that eliminates a vacant seat? The same thing.
Here’s the next thing. One objection to President Obama’s executive order on immigration is that he lacks the statutory authority to do what he did. (The Supreme Court will take that up later this month.) Another complaint, though, is that the order is legal but that a President should not address such a sensitive and important question unilaterally. He has a duty, you might say, to work with Congress. For the Senate’s inaction on Judge Garland, the argument is similar. The Senate has the power to not act, but that on such an important matter they have a duty to work with the President by acting.
In both cases, though, the “duty” is just political. If the President thought that taking unilateral action on illegal immigration would be politically harmful, he wouldn’t have done it. The same is true for the Senate Republicans now. We’ll see if they are right.