Judge Bork was on Hannity today, and said this argument is hogwash. The Senate is entitled to set its own rules for the handling of nominees.
I respect him immensely, but I believe Judge Bork is wrong. The Senate IS required to perform its Advice and Consent function. It is not optional.
The logic of this is quite simple and inescapable. The President is required to fill these vacancies ("...he shall nominate, and ...shall appoint..."). Now, those who try to dissemble and deny that the Senate's role in this process is mandatory by asserting that Article 2, Section 2 does not specifically say "the Senate shall" fail to grasp (or more likely deliberately ignore) that this contingency is covered by the Senate members' Oaths of Office. Again, the logic is simple and clear. If the Senate fails or refuses to perform their Advice and Consent function, then they are preventing or obstructing the President from fulfilling his mandated duty. Obstructing a Constitutional Officer, e.g. the President, from carrying out his duty is itself a violation of the Constitution.
Furthermore, the phrase "Advice and Consent" in constitutional law means simply that the Senate must vote (or whatever other procedure they decide to use - they can read chicken entrails if they wish) to either approve to reject the President's nominee. That is ALL it means.
One other point needs to be addressed. Many people incorrectly use the term "Consent" by implying that it means that the Senate is commanded to "approve" the nomination. That is not the case. The phrase "Advice and Consent" is a term of art that in the accepted constitutional usage of 200 years means to vote. The Senate is free to either approve or reject the nominee. What they are not free to do is to avoid or refuse to participate in the process which the Constitution specifically outlines and requires, since by refusing to perform their Advice and Consent function in the Constitutionally mandated process for filling vacancies, they are, as stated above, obstructing another Constitutional Officer, the President, from fulfilling his constitutionally mandated duty.
Agree. HOW the Senate performs its duties or regulates ITSELF becomes an issue only when it affects the government as a whole (viz., denying the President the ability to exercise his Constitutional duty & privileges). The tyranny of 14 affects the government as a whole--not to mention the nation.
You assume that people can and do actually read, and care about these issues. Sadly, they clearly do not.
Funny... but I do not recall any Freepers expressing this point of view when Jesse Helms refused to even hold a hearing on William Weld's nomination to be Amb to Mexico.