True, and a 2/3 majority is NOT required for confirmation of appointments. But what you're missing is that a filibuster is nothing more than a protracted debate, and as such it is subject ONLY to Senate rules. The Constitution grants Congress the power, not a right, to make it's rules of procedure, and one of those rules is that a 3/5 majority is required to end debate. That rule was adopted in 1917, and the original version required the votes of 2/3 of the Senators who were present in the chamber at the time the vote was taken in order to end debate. That rule was modified in 1975 by a Democrat majority Senate, and it now only requires the votes of 3/5 of all duly elected and seated Senators to invoke cloture and end debate whether or not all the Senators are present in the chamber when the vote is taken.
To sum up my contention, by current Senate rules of procedure adopted under the powers granted solely to Congress by the Constitution, 60 aye votes are required to invoke cloture and end a protracted Senate debate, aka a filibuster, and the Constitution does not grant any court or other branch of government the power to change that rule. The one exception to the 3/5 majority rule is that a 2/3 majority is still required in order to end a debate that involves making any further changes to the cloture rule.
BTW, the Constitution does not and can not grant rights to the people or to any branch of government, it only grants powers to the government and protects certain rights of the people. Rights belong to the people, not government, and are inherent, inalienable, and are neither granted nor subject to revocation by any government or constitution.
I'm sure you know all that as well as I do, but someone reading our exchange of views may not and might wonder why we make a distinction between powers and rights.
Thanks.. Yes, I know the history of the filibuster rule. But, we have 200 years of precedent of the filibuster NOT being used for confirmation of judges. Well, except for a temporary application in one extreme case, I suppose...
I believe the issue is debatable, and needed to be resolved. I think it is abundantly clear what the Founders intended: They wanted to Senate to VOTE: Yea, or Nea. Heck, they thought the “advice and consent” was so informal, that it would likely be waived for judges in lower courts. I guess they underestimated the power of political gamesmanship.
I believe, the Senate has usurped a power that is NOT granted to them in the constitution. On legislative matters, they can set any hurdle they wish. But, confirmation of appointments involves their relationship with the another, co-equal branches of government: the establishment of the Judiciary, and the Chief Executive’s power of appointment. Because of this interaction, the Senate does NOT have the authority to impose stricter requirements. At least, that is my opinion. And, it is the opinion of most scholars I’ve read who dare to write about it.