Obama should have appointed a progressive judge and declared that Congress has opted to decline their constitutional duty.

he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Now, I’m not a lawyer, but I’ve spent a long time pouring over labor laws. “by and with advice and consent”, along with other permissive language like “may” and “shall” speaks to the ability of Congress to decline their duty of appointment.