Scalia would start with the text of Article II, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Note that the president “shall” nominate and appoint. He has an affirmative duty. By implication, the Senate has an affirmative duty to provide the advice and consent necessary to effectuate the command to nominate and appoint. Their role is not discretionary. Like the president’s, it is obligatory. Senators may withhold consent, as the Republican letter correctly notes, but there is no textual or principled basis for denying hearings altogether.

The Senate, however, has informed Americans that it seeks to protect the people’s ability to choose “the direction the Court will take over the next generation.” But the people do not choose justices for the Supreme Court. As Scalia would make clear, the Constitution already reflects the will of the people by granting the duly elected president the power to nominate justices and the Senate the power to advise. President Obama won the most recent election. There is no exception to the appointment power that disables it for the final 11 months of a president’s tenure.

Underscoring their call for recalcitrance, of course, is the reality that Republican senators must satisfy their partisan base—by inhibiting the Democratic president’s ability to make an appointment to the Supreme Court during the final year of his presidency. The seat should remain vacant, Republicans say, until the results of the next partisan election are in. The fact that press reports indicate some willingness on the parts of a few of those same Republicans to hold hearings and confirm Garland during the lame-duck period—should the Republican presidential candidate lose in November—only underscores the party politics behind the Senate’s refusal to conduct hearings. Such partisanship is anathema to the Constitution’s original meaning and design.

James Madison, a key architect of the Constitution, wrote in Federalist 10 that the Constitution’s structural design was intended to counteract the pernicious effects (the “mortal disease”) of party factions. Factions, he wrote, are “citizens … who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” To that end, the original design for selecting the president and vice president assigned the offices according to who received the two highest numbers of electoral votes no matter their party allegiance. The assumption was that only persons possessing great civic virtue would be chosen to fulfill those offices. Selecting a president this way did not account for the possibility of party-line tickets for president and vice president, a flaw that led to an electoral debacle in the 1800 election. The Twelfth Amendment was created to address this problem and to acknowledge the development of partisan politics.