Can the Senate wait until the election and then confirm the president's Supreme Court nominee?

Question

Currently the Republican held Senate has vowed to block any Supreme Court nominee by President Obama. The president recently nominated Merrick Garland. Merrick is fairly moderate and, while he's no Scalia, he's probably preferable (in Republican eyes) to anyone Sanders or Clinton would nominate with a Democrat controlled Senate. If the Republicans block the nomination until November and then see a Democratic victory, is there any mechanism to stop the Republican held Senate from cynically confirming Garland as a lesser evil?

Note: I'm not asking about whether such events are likely to transpire. I'm just wondering if there is a constitutional or Senate rules mechanism for the president to keep the senate from waiting and then confirming his nominee.

Answer 1

The constitution grants the President the power to "nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court".

A President may withdraw a nominee before a confirmation vote occurs. This was done by George W. Bush when he withdrew the nomination of Harriet Miers.

Even if the nominee were confirmed, there's no set requirement on when the the nominee would have to be appointed by the President. Or at what time the President must deliver commission to a nominee. As we saw in Marbury v. Madison, Marbury was confirmed but since Marbury did not receive his commission he did not become a judge. I would like to point out that appointment is a voluntary act, as decided in the case above. Once appointed, a civil officer must receive their commission before exercising their duties. If there is a gap in the process anywhere, the nominee does not become a Justice.

Thus the President would have ample opportunity to "undo" his nomination if there was a need to.

Answer 2

If the Republicans block the nomination until November and then see a Democratic victory, is there any mechanism to stop the Republican held senate from cynically confirming Garland as a lesser evil?

The President could withdraw the nomination. Vetting the candidate takes some time. Then they have to vote the candidate out of the judiciary committee and hold hearings. Then the actual vote. While they might be able to abbreviate that process, it should still give the President plenty of time to withdraw the candidate.

It's possible that they could hold the hearings before the election and schedule the vote after. But they might well be reluctant to do that in the face of likely blowback from the electorate. Such a strategy might well be regarded as a political trick.

All that said, assuming that the President does not interfere, there is nothing to keep the Senate from confirming Garland in November. The Senate has wide latitude in such cases. The constitution says very little.

So the President could stop them from doing that but it won't happen automatically.