Some analysts have argued that the Senate has a “duty” to hold hearings and vote on a President’s nominee.

It is hard to see where such a legal duty comes from. The text of the Constitution certainly does not use any language suggesting the Senate has a legal obligation to do anything; instead, Article II, Section 2, says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various high-level executive and judicial officers. This simply means that the president may not appoint a justice without the Senate’s “consent” or approval, not that the Senate must express its lack of consent in any particular way or along any particular timeline. (The clause does use the word “shall,” but that sometimes mandatory verb applies to the subject of the sentence—the president—and not to the Senate. And since a president can always decline to issue a commission to a justice, it is not even clear that the president is under any mandatory legal duties here.)

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.