] Article 2 Section 2 Clause 2: [Speaking about the powers of
] the president] He shall have Power, by and with the Advice
] and Consent of the Senate, to make Treaties, provided two
] thirds of the Senators present concur; and 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.

So, what does this mean. John Jay Hooker, who, incidentally, believes that there ought to be a constitutional amendment to require a 2/3rds majority of the senate for judicial confirmations and wants to end lifetime appointments, thinks that judicial fillibusters are unconstitutional. His arguement is fairly persuasive.

The constitution requires a 2/3rd majority of the "senators present" to approve a treaty. It does not make this requirement for judicial appointments. It requires only consent. What does consent mean?

I've managed to think about this long enough that I can see both sides.

The most obvious meaning for a legislative body is a simple majority. This is the most plain and obvious way of thinking about this. The Consitution requires a simple majority for judicial confirmations. In that light, the fillibuster is unconstitutional, because it creates a super majority requirement.

On the other hand, if the framers intended to require a simple majority they might have said that specifically. They didn't. So, maybe it means whatever the Senate decides it means, as "Each House may determine the rules of its proceedings..." Maybe the Senate can decide that consent means whatever they want in any situation where the constitution doesn't specify.

The danger of the later train of thinking is that I'm concerned that it is over thinking the issue. It might be sophistry. The constitution specifically mentions super majorities in situations where extra care must be taken (such as for impeachment.) The default case is obviously a simple majority. If it were "whatever the senate defines" then the senate could require unanimous consent for any legislative issue, which would create the preverse situation in which impeachment would require less consent then the passage of a simple law.

The danger of the former way of thinking is that if a simple majority is required for judicial nominations, then it may required for all other kinds of senate business. Now the filibuster has been a part of parlimentary proceedure for over 200 years. The idea that its unconstituional in general is rather radical thinking. You'd think this would have come up before. On the other hand, the idea that a simple majority might be required is more important in the context of a judicial nomination then other legislative business, as in this case the Constitution is balancing the power of the President with that of the Legislature and is not simply setting the legislature's responsibilities.

Resolving this question would require a constitutional scholar. Someone who is actually familiar with the context in which these words were written. WHY didn't they set a 2/3rds requirement for judicial nominations? Were they assuming at the time that it would default to a simple majority, or were they assuming that the Senate would figure something out on their one. The deliberations over this very passage would illuminate that, but I've no idea where to research that kind of question. Its the sort of thing Clarence Thomas would write a decision on...

There is hubris is allowing the intent of people who lived 200 years ago to drive our system today, but the rules are very difficult to change. Its much easier to interpret them in your favor then it is to make them plainly say what you think they ought to say. The fear is that we do not have men in this time who have the detachment and self control needed to craft something like this. If our politicians wrote us a new constitution from scratch we would end up with a terrible system in which today's vested interests insure their long term positions at the cost of everyone else.

RE: Senators Reach Deal on Filibuster