[KellyAdmirer]

Yes, I agree that is the issue. But if the general Senate rule allowing filibusters can be applied in unconstitutional fashions - and that is how the general filibuster rule is being used, to require the super-majority which is not contemplated by the Constitution - then the entire rule itself is flawed and must be re-written in order to only apply in constitionally benigh situations. Or at least that may be a possible argument here. Unconstitutionally vague and all that stuff. Just a possibility, however remote.

[kayak]

OK, I see what you're saying ..... it's a fine point of distinction but a significant one. I just hope that someone can do something to stop the donkeys.

[byteback]

Marbury vs Madison? The first major ruling established that the judiciary is the final arbitor of interpreting the Constitution. They could rule that the Constitution doesn't grant the Senate the power to hold a nominee to a supermajority.

[deport]

Just musing...

The cloture rule didn't come into effect until 1917, I believe..... Thus the Senate in effect was operating under the premise until that time it took 100% of the Senators present and voting to bring debate to an end... Or is that a wrong premise on my part?

Thus in 1917 the cloture rule attempted to establish a number less than 100% [2/3rds] to allow for a vote... It was further amended to bring the number down to 3/5ths of the Senators...

It appears to me that a rule would have to be adopted to reduce either that number to a majority on judicial nominees or that some preset time limit made applicable to the debate on all judicial nominees.... Otherwise if the cloture item is eliminated then we are back to the original setup before 1917 if you assume that unlimited debate is the basis to which the Senate operates.