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Just what is advise and consent, anyway?

Couldn't the President use a letter stating their consent from a majority of Senators as his consent?

Why is an actual vote needed?

I would like to see President Bush have Estrada sworn in and when the minority challenge this, he can say that he has already received the advise and consent of the majority of the Senate. Then he could show them the letter that was signed by 55 Senators.

Even if there are Senate rules requiring a vote, they would have to sue , and I don't see how the court would view a minority filibuster as constitutional when it comes to naming nominees.

Is this a strategy that could possibly work?

I too have been wondering if "consent" must necesarily be determined by a vote. If the current game plan does not meet with success (and I am still persuaded that it will in due course), then I think that President Bush should consider declaring that a written consent signed by 51+ senators is all the consent that he needs and let the Dems file a lawsuit to block Estrada from taking the bench. Or the administration and/or Estrada could file a suit for declaratory judgment to determine if the nomination has the necessary consent under the circumstances.

I would also like to see the Senate, after making a big public display of how broken the system is, amend the Senate rules to preclude a filibuster of judicial nominations or make other such changes that would prohibit the current stalemate. Then they could have an up-or-down vote on the nomination and seat Estrada. Let the Dems file suit or the Repubs seek a declaratory judgment.

I would not advise these steps if the nomination can be confirmed under any other circumstances.

Fascinating concept. I'd love an answer to this great idea. (There is probably some miniscule legality that would prevent it, but it is certainly worth a try.

Just the publicity about it would be enough to thoroughly embarass the Democrats--as their obstructionism would be in the spotlight once more.