Can the Senate confirm Merrick Garland?

There's an interesting little story circulating about a loophole in the Senate rules that may lead to a confirmation of President Obama's pick to fill the vacant seat of Justice Scalia.

From the Daily Kos:

Senate Republicans refused to give President Obama’s pick to replace Supreme Court Justice Scalia even the courtesy of a hearing. It was disrespectful, and historically unprecedented. But there is still something we can do to get Merrick Garland confirmed before Obama leaves office.

At 12:00 noon on January 3, 2017 (according to the Constitution), the terms of 34 U.S. Senators will expire. At that point, the Senate will briefly consist of 66 sitting senators—until Vice President Joe Biden, in his capacity as Senate president, begins swearing in the senators-elect.

Before Biden begins the proceedings, he has a chance to preside over a Senate that consists of 34 Democrats, 2 independents who caucus with Democrats and 30 Republicans—as the remaining Senators are in limbo of being newly sworn in. At this point, Democrats could ask to finish Senate business as it pertains to President Obama’s nomination of Judge Merrick Garland.

For the past year, Republicans have claimed that the "American people" should decide the fate of that Supreme Court seat. Hillary Clinton got 2.7 million more votes than Donald Trump, and more Americans voted Democratic in the U.S. Senate races. Democrats are entirely justified to make this move, and it's the only way to guarantee that Garland will be confirmed.

Senate Democrats pulling off this move must be willing to proceed over the very loud, but still out-of-order objections from Republicans. That’s to say nothing of the Republican sore feelings that would come from Democrats winning the right to fill the SCOTUS seat the entire nation knew belonged to President Obama. But it's the right thing to do.

This brings up all sorts of interesting Constitutional questions. Does a 66-seat Senate have the legal authority to do this? Can the Republicans filibuster the vote, although the rules may refer to 60 senators being needed to do so. How long can Vice President Biden delay the swearing in of the new Congress? Will the 36 Democrats and Independents agree to do this?

This move, if legal, would certainly go a long way toward curtailing some of the worst excesses predicted during a Trump presidency. As long as the remaining Justices remain alive until January of 2021, when we'll certainly see a more moderate president taking the Oath of Office.