The progressive argument for “confirmation by proclamation” begins with the Constitution’s provision that the president “shall nominate, and by and with the advice and consent of the senate . . . shall appoint . . . judges of the Supreme Court.” It doesn’t say, they note, that “advice and consent” requires a formal vote. What if the president were allow the Senate a reasonable time to act on the Garland nomination? If it doesn’t, Obama could announce that, in essence, silence means consent, and his nominee is appointed.

This argument does not simply torture the Constitution’s text and history, it waterboards it. The words “advice and consent” in Article I of the Constitution may seem vague, but in context, they aren’t. Senate confirmation is required not only for judges, but for “Ambassadors, other public Ministers and Consuls … and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” Even a Senate working in good faith could not necessarily confirm every presidential nominee within a fixed time period, and the text sets no deadline for these appointments. Elsewhere, the Framers did provide deadlines: For example, neither house of Congress may “without the Consent of the other, adjourn for more than three days.” A bill sent to the president for signature will become law unless he signs or vetoes it “within ten days (Sundays excepted).” Presidents also have the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The Framers understood deadlines, and they neither set one, nor implicitly granted the president power to set one, for confirmation.

Beyond that, as Peter Shane of Ohio State University recently pointed out in an interview, Article II of the Constitution makes clear that “advice and consent” is a formal vote, not just a moment of silence. The president has “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” In 225 years, to the best of my knowledge, no one has discerned this power vested in the president. There’s a reason for that: It’s not there.

On the other side, some conservatives have suggested that the Senate has no “duty” to consider a presidential nomination. Glenn Kessler, who runs the “Fact Checker” blog at The Washington Post, went so far as to give “three Pinocchios” to the idea of a senatorial duty, deeming it “mostly false.” But this apparently means it’s “maybe wrong or maybe not.” As Kessler wrote, “It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility.” A matter of opinion is not, by definition, a matter of fact.