The President appoints and the Senate confirms. If the Senate abstains, the appointment stands.
There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working.
Okay, it’s a legal theory, so it is much more complicated than that. But Garland pulling on his judicial robe and plunking himself down in Antonin Scalia’s seat without so much as a fare-thee-well from Mitch McConnell….
What we think of as the “advise and consent” process is nothing but the accretion of tradition. The GOP Senate has overturned tradition, so what is the new process? President Obama has a hand in forming that new tradition and seating a new Supreme Court Justice while the Senate abstains should be the next step.