Tl;dr (opinion of author): the Senate waives its right to affirm or reject a Court nominee by not acting in a reasonable amount of time, at which point the President can appoint the nominee.
This is certainly an interesting legal theory. It's even more interesting that the Supreme Court itself would be the body to resolve whether or not such an appointment is Constitutional.
Tl;dr (opinion of author): the Senate waives its right to affirm or reject a Court nominee by not acting in a reasonable amount of time, at which point the President can appoint the nominee.
This is certainly an interesting legal theory. It's even more interesting that the Supreme Court itself would be the body to resolve whether or not such an appointment is Constitutional.