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From the senate rules:

Rule 15.1. Action on Senate rules

No rule of the Senate shall be added, amended, or repealed except by Senate resolution adopted by the favorable vote of at least a majority of the members elected to the Senate, and such resolutions shall not be deemed to be perfunctory.

Rule 15.2. Suspension of rules

No rule of the Senate shall be suspended except by the favorable vote of at least a majority of the members elected to the Senate.

In the end denying judges an up and down vote will be ruled unconstitutional. This will stop the filibuster of judges.

BID TO END PARTISAN OBSTRUCTION CLEARS KEY SENATE COMMITTEE

Rules Committee vote a "crucial first step in judicial nomination reform," Cornyn says

WASHINGTON – The Senate Rules Committee took an important step toward repairing the broken judicial confirmation process Wednesday, U.S. Senator John Cornyn said following the committee's 10-0 vote to pass Senate Resolution 138. The bipartisan proposal, co-sponsored by Cornyn, would guarantee full debate on nominees, while enabling a Senate majority to eventually hold up-or-down votes—bringing an end to the current obstruction faced by judicial nominees such as Justice Priscilla Owen of Texas and Miguel Estrada.

"This resolution is a reasonable, common-sense proposal," Sen. Cornyn said. "There are at least 26 laws on the books today that prohibit a minority of senators from using the filibuster to permanently block certain kinds of measures. The judicial confirmation process should surely be added to this list. By passing this resolution, the committee recognized that, and took a crucial first step in judicial nomination reform."

Cornyn, Chairman of the Judiciary Committee's Subcommittee on the Constitution held a May 6 hearing on the constitutionality of filibusters against judicial nominees, where filibuster reform was first debated. And S. Res. 138 was debated in a Rules Committee hearing on June 5 where Cornyn testified on behalf of the reform. The rule change would gradually reduce the 60-vote requirement on successive cloture votes until a filibuster could eventually be ended by a simple majority. Such a rule would prevent endless delay of judicial nominees, while ensuring the right of the minority to have an adequate debate--the original purpose of filibusters.

"The current filibusters of judicial nominees, done not to ensure adequate debate, but to block a Senate majority from confirming judicial nominees, are unprecedented and wrong," said Cornyn. "This resolution repairs that damage, bringing certainty to the confirmation process: all nominees brought to the Senate floor can be afforded an up-or-down vote."

Currently, in an unprecedented move, a minority of senators is blocking an up-or-down vote for Justice Owen, nominated to the U.S. Court of Appeals for the Fifth Circuit, and Miguel Estrada, nominated to the U.S. Court of Appeals for the D.C. Circuit.

"There has never been a filibuster of a judicial nominee--now there are two," Sen. Cornyn said. "Further nominees are threatened to be filibustered and we must do something soon or this downward spiral of obstructionism will only grow beyond our capacity for reform. Such failure would be especially troubling, and in fact unacceptable, during the confirmation debate on a future nominee to the Supreme Court. I hope my colleagues will join me in approving this bipartisan measure when it reaches the Senate floor for a vote. Judicial nominees, now and in the future, deserve no less."

The resolution now moves to the full Senate for a vote. A majority of the Senate is sufficient to approve a rules change. Under Senate Rule 22, debates on a rule change can be ended by a two-thirds vote. However, Cornyn’s May 6 hearing on the constitutionality of filibusters against judicial nominees demonstrated the widely-held view shared by legal scholars and Vice Presidents across the political spectrum that a prior Senate majority cannot constitutionally forbid a current Senate majority from changing the rules if it wants to do so.

Cornyn chairs the Subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the Senate Judiciary Committee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.