First off, my apologies for my last remark in my previous post - I get passionate about this whole filibuster thing, view it as a stalling tactic which the dhimmis have successfully employed. Between the enablement of this twisting of the Constitution by the left, the blessing said tactic has recieved from the media, and the general lack of backbone by the republican majority, I don't know which gets me pissed off more.
For BiB: though I cannot speak for all events involving nominees, I know there were many clinton nominees posted in the very latter part of his administration - pubby senators felt he was trying to ramrod some quick ones ala his 11th hour mass pardoning of dubious characters, and rightly held them up. To President Bush's credit, he did forward some of those qualified nominees in his first batch, along with (of course) nominees of a more conservative leaning. The dhimmis (remember, at this point in 2001 there was no republican majority, said fact reflected in committee membership as well...) quickly passed those democrat nominees, then held up the conservative ones.
On the Senate website, I confess that the distinction is blurred on Fortas... were the floor discussions against him part of the talking period prior to vote? If so, how then could it be called a filibuster? Seems to me, to have been a filibuster means it would have 1) gone to the Senate floor for discussion, pro & con; 2) been posited for a vote; at which point 3) the opposition would then have filibustered to prevent the actual vote. Fortas was shot down when it became evident he did not have the support needed to be voted in, therefore I would think he was removed during my ad-hoc step (1), above.
This is not an issue about the filibuster per se; I believe to address this under the same parachute obfuscates the main point; that a filibuster has never:
A) been used on judicial nominees who otherwise have been favorably forwarded by the committee; who
B) would, if the senate were to vote, almost certainly be elected to the bench; or for that matter...
C) been a filibuster in name only, whereby the minority party is not required to "hold the floor" in discussion.
True, the Constitution does not specify filibuster on judges... or anything else. The filibuster is an artifice which falls under Senate Rules.
But those rules must perforce be based on Constitutional ethics - could the senate make a rule that states all decisions must be unanimous, effectively rendering that body into the 21st century incarnation of the Polish Diet? We know full well what paralysis would ensue from such folly, and Poland can tell you the dangers of giving one vote effective hindrance upon the body politic can do to a Nation's survival.
Advice and Consent does not mean 41 can prevent the other 59 from exercising thier Constitutional obligations... as Robert KKK Byrd so famously (if certainly not covered by MSM) described recently when he stated "the Senate has voted against them" (the nominees). The Senate has NOT voted, and you, Sen Byrd, are Out of Order!
For that matter, I've never understood why a point of order was not posited from the very first - the Senate would then have had to decide whether this filibuster was legit or not, and I believe the vote would have been against it.
But, as I mentioned before regarding my angst against wuss-pubby senators... if frogs had handguns, birds wouldn't f*"k with them...
I believe that technically, the Fortas filibuster was actually on the motion on whether or not the Senate would take up the actual consideration of Fortas for Chief Justice. I remember reading somewhere a few weeks ago about how Ernest Hollings read through long passages from a book as part of this filibuster. But, in any event, the filibuster of the motion to bring up the Fortas nomination for a full vote ended up with Fortas not being confirmed after he was recommended by the committee.
The truth is that the Senate can make any rules it wants, including 100% agreement however foolish that would be. Since the constitution gives the Senate no specific guidance on procedural matters of how to conduct its business, the Senate must make its own rules. I think this is perfectly legitimate no matter which party is in charge.
The issue does boil down to just what "advice and consent" means. I personally think that when the Senate goes about giving or not giving advice and/or consent, which ever way that goes, it is subject to the rules adopted by the Senate for it's operation. There is nothing unconstitutional about the Senate changing the filibuster rules on judicial appointments to a simple majority if that's what it votes to do. The Dems' only valid argument is against the abolition of the Senate precedent and tradition of the filibuster and nothing else. And, as the GOP argues, once that rule is changed, that becomes the new precedent.
But going back to my original post, I do question whether it is wise to change the rules, regardless of whether the Senate can or cannot change the rules. I think that in the long run this will come back to bite the GOP in the posterior as the mood of the country swings back and forth like a pendulum. One day, the Dems will control the Senate again. Sorry if that bothers some, but that's the nature of the beast we call politics.