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I don't think a Court would touch the question of the constitutionality or the enforceability of the Senate's internal rules, particularly the rules relating to filibusters. I think any Court would consider that a political question, internal to the Senate.

Of course, the Senate itself has the power to invalidate its own rules on the grounds that they are being applied in a manner that violates the Constitution. Therefore, if 51 senators simply decided to hold an up or down vote to confirm one of the President's nominees, and did so (simply ignoring the Senate filibuster/cloture rules), I think that nominee's confirmation would be recognized by the judiciary.

Frist would simply need to hold a press conference and announce something like the following:

"The Constitution obligates this Senate to provide advice and to consent with respect to the President's judicial nominees.

The Democrats, by refusing to permit a vote on Miguel Estrada, Priscilla Owens, Charles Pickering, etc, are preventing the Senate from discharging its Constitutional obligation.

In particular, the Democrats are applying a Senate rule, which requires the votes of a 60 senator super-majority to permit the scheduling of a substantive vote, to an issue--judicial nominations--to which this rule was not intended to apply, and to which it has historically not been applied.

After serious consideration, I, as well as a majority of the members of this Senate, have determined that the minority's use of this rule in this fashion, because it is preventing this Senate from discharging an obligation specifically imposed on this body by the Constitution, is not constitutional.

Although I greatly respect the rules of this Senate, when the rules are applied in a manner which prevents this body from fulfilling its Constitutional obligations, then those Constitutional obligations must prevail.

Therefore, notwithstanding the Senate's rules, I have directed the Clerk of the Senate to schedule a vote on the nomination of Miguel Estrada to occur at _______________. I have directed the Clerk of the Senate to schedule votes on the other nominees whose confirmations have been filibustered by the Democratic minority every 48 hours thereafter.

Assuming a majority of the members of the Senate vote at that time to confirm the nomination of Mr. Estrada, I will thereupon officially certify that the Senate has consented to the nomination of Miguel Estrada, thereby permitting him to immediately assume his duties at the DC Circuit Court of Appeals.

I, and the majority of the other members of the Senate who support me in this action, have not lightly chosen to take this action. But the minority's misuse of the Senate Rules to achieve the clearly unconstitutional purpose of frustrating this body's duty to provide advise and consent with respect to the President's judicial nominees has left us with no other choice."

The Democrats are the great practitioners of the art of pure power politics. Let the Republicans give them a taste of their own medicine.

I don't think a Court would touch the question of the constitutionality or the enforceability of the Senate's internal rules, particularly the rules relating to filibusters. I think any Court would consider that a political question, internal to the Senate.

The Courts are getting increasingly arrogant/unconstitutional. If they ruled against the Republicans, they wouldn't need to be concerned about the enforcement of their opinion.

Your post is the best solution I've read.

That solution would require the votes of 51 senators (or at least 50, plus the vice president). Can we be sure it would get those votes?

Therefore, notwithstanding the Senate's rules, I have directed the Clerk of the Senate to schedule a vote on the nomination of Miguel Estrada to occur at _______________. I have directed the Clerk of the Senate to schedule votes on the other nominees whose confirmations have been filibustered by the Democratic minority every 48 hours thereafter.

Frist better know he's got the support of Snowe, Collins, and Chaffee on something like this or it would blow up in his face, big time.

You don't fire a silver bullet, and miss.

Of course, the Senate itself has the power to invalidate its own rules on the grounds that they are being applied in a manner that violates the Constitution. Therefore, if 51 senators simply decided to hold an up or down vote to confirm one of the President's nominees, and did so (simply ignoring the Senate filibuster/cloture rules)

Judicial Nominations, Filibusters, The Constitution: When A Majority Is Denied PART 1 "