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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.