The Constitution of the United States, Article II, Section 2, explicitly grants the President the authority to nominate Justices to the Supreme Court. “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and ...”.
The President Nominates and “with the Advice and Consent of the Senate” Appoints. The president has a constitutional duty to nominate and the Senate has a constitutional duty to give “Advice and Consent”. The Senate is obligated by their Oath to perform ALL of the duties of a Senator as specified by the Constitution. No Exceptions. When the Senate refuses to give a hearing to any Obama nominee to the Supreme Court, they have refused to perform their Constitutional Duty.
There is a way to force anyone to perform their Constitutional Duty: The Writ of Mandamus. At the Federal level, the writ applies to anyone who has an explicit duty to act and who refuses to act or delays until the delay violates the duty. No President has ever before sought a Writ of Mandamus to force the Senate to do its duty; but the actions of the current Senate exactly matches the requirements for seeking the writ.
In the next few weeks, President Obama is expected to nominate someone for the vacant seat on the US Supreme Court. Obama’s nominee will be extremely qualified to be a Supreme Court Justice, but that won’t matter. The Senate has already said that they will not give Obama’s nominee a hearing, no matter whom he nominates.
About 90 days after Obama has presented the Senate with his nominee, if the Senate has still not performed their duty and given Obama’s nominee a fair hearing, then Obama will have the right to request a Writ of Mandamus. Obama would have to Sue the Senate in the D.C. Circuit Court or the US Supreme Court, naming each individual Senator, and requesting that they be ordered to perform their constitutional duties or appear before the Court to Show Cause why they did not perform their duty. If the Senate still does not act, Obama would sue again seeking a Writ of Peremptory Mandamus, commanding the Senate to do their duty.
Every Senator at the start of his/her term swears a solemn oath:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
The Writ of Mandamus
US Supreme Court, Rule 20