[Keith in Iowa]

They're tilting at windmills.

SCOTUS won't touch this. Separation of powers. The Constitution gives the House & Senate the power to set thier own rules. If they don't like the rules, they can change them.

[spokeshave]

If Fox News can sue itself why not..?

What about one of those manamuss (sp) thingies .... which instructs a government dept to follow its own rules...in this case an up/down vote on the judges

[KellyAdmirer]

I don't think the Senate can have unconstitutional rules just because it is in a separate branch of government. The executive is a separate and equal branch and it can't do unconstitutional things such as override due process and so forth. I'm sure there are very bright boys and girls researching this very topic right now somewhere, so we'll know definitively soon enough.

What I find fascinating is that, if the Supreme Court did rule on the merits, it could conceivably throw out the entire filibuster process as unconstitutionally vague and require the Senate to craft a new one. A longshot, but one can dream. Now THAT would be interesting.

[P-Marlowe]

SCOTUS won't touch this.

I think they might. We are not dealing with rules in regard to legislation, which is within the perview of the Senate and house, but this deals with the constitutional power and authority of the President to nominate Justices. The Senate has a constitutional authority to advise and consent. The Supreme Court has the authority to interpret that clause. Does it mean that a minority of senators can hold up the consent? Or does it require that the Senate vote these nominations up or down without undue delay?

I think that since this filibuster rule has not been used in over 200 years of judicial nominating procedures, that the SCOTUS very well may find that the Senate has engaged in an unconstitutional infringement upon the President's constitutional power to make nominations that will either be rejected or consented to following a reasonable investigation into their qualifications.

I am optimistic on this one. I do not believe that the Senate has the right to ignore a nomination, but I believe that the Senate has a constitutional obligation to give advise and consent upon each and every judicial nominee. Failure to act upon a nomination is an unconstitutional infringment upon the power and authority of the Executive Branch. This is not a political question. This is a pure constitutional question. The Supreme Court has an obligation to interpret the advise and consent clause if it is brought before it.

[WillRain]

I don't know. The SCOTUS need not directly address Senate procedures to simply haul them up for not fullfilling the Constitutional mandate.

they can, in effect, say "WE don't care if you do it by consulting the Psycic Hotline but your constitutionally appointed job is to decide - so do it!

Besides, as I mentioned, once there actions affect another branch - and here they affect both the exec branch (because they are presiential appoinments) in that they are interfereing with Bush carrying out his assigned duties and the Judicial branch (by leaving open court seats) they have stepped outside of "internal affairs"

[cpdiii]

They're tilting at windmills. SCOTUS won't touch this. Separation of powers. The Constitution gives the House & Senate the power to set thier own rules. If they don't like the rules, they can change them.

Just because we have seperation of powers does not mean one branch of goverment can act unconstitutionally. The Constitution says the Senate will "advise and concent." The concent is by a simple majority vote not a super majority.

Congress in the past has passed laws that were struck down as unconstitutional, and the legislature does not have the authority to conduct itself outside of constitutional law. The judicary does have the authority to interven in this case.

[MarkT]

But can a the Senate confect a rule (by majority) which requires a 60% vote for a constitutionally-mandated advise and consent function, which function, pursuant to the Constitution, only requires a simple majority? I think not since I believe that Senate rules cannot trump the Constitution.

[metesky]

bttt