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Do they have any other options to force the nominees to the floor?

Some options:

• Parliamentary point of order that supermajority for up-or-down advice and consent is unconstitutional (the so-called "nuclear" option)
• S-138, a bill to change the rules of the Senate, whereby the threshold for cloture, for advice and consent, is lowered in successive votes until a simple majority suffices
• Change the Senate rules at the start of the next Congress
• Take a case to SCOTUS (stronger if the President joins, but politically dangerous)
• Provoke public pressure to prevail on the sensibilities of the recalitrant DEM Senators

This issue is not going to go away. The assertion that the DEMs have won, period, is wrong. Have the DEMs succeeded in delaying some judicial appointments? Yes. To that extent they won. But that does not compare with total victory. Patience, all, patience.

This is really a double edged sword. If the SCOTUS agrees with my interpretation, then a lame duck president could conceivably stack the courts by requesting that all the old dying judges that agree with his philosophy resign and allow the lame duck president to stack the courts with young ideolouges.

I'm not sure they would rule as you hypothesize, that all nominees must be addressed within that term. Even so, the Constitution permits the appointment of lower Officers without advice and consent, so the risk you describe is already Constitutionally present.

I agree with your point that the case would have merit. As a political matter, I think this is better settled without involving SCOTUS.

I saw some posts on another thread stating that persons accepting recess appointments do not receive pay unless and until they are actually confirmed later by the Senate.

Did any of the posts cite 5 USC 5503? That is the relevant statute. The purpose of a no-pay for recess appointees statute is to enforce the Sentate's power of advice and consent.

See also Recess Appointments of Federal Judges, which discusses your question.

It's an interesting avenue for the Senators to pursue.

To those who say the SCOTUS won't take it, flat out, I say there are good arguments on both sides of that issue. The courts indeed get involved in separation of powers cases, but the threshold is not clear.

Purely hypothetical, but what if the Senate rules required unanimity for signing on to a treaty, in clear contravention of the Constitutional requirement for 2/3rds? That would effectively neutralize the Presidential power to make treaties. Similarly, in the case at hand. the President's power to approve Article III judges has been tipped.

Further, the Constitution provides for Senate oversight for Supreme Court nominees, and that the Congress can make laws prescribing the process for lower court judges (District and Circuit courts, in this case). Notice that the Constitution says the -mandatory- laws prescribing filling those lower offices may "... vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." This clause intimates a limit on Senatorial power, and that for inferior Officers, the appointment power can be vested in the President alone, or in the courts -- but NOT interposing a higher barrier for appointment than the advise and consent of the Senate. It happens that the relevant statutes (for filling Disctict and Circuit Court vacancies) recite an advice and consent requirement, but the Constitution does not mandate this.

Clearly, if the Senate rules required unanimity in order to produce the advise and consent the Constitution requires for Supreme Court nominees, thereby permitting a single Senator to thwart the President in the exercise of his Constitutional power to fill a Supreme Court vacancy, we would have a Constitutional crisis. Would the SCOTUS take such a case? If yes, then we are talking about the threshold for taking a case. The Senate rules are now being used to effectively permit a minority of Senators to do precisely that, block Presidential appointments. The suit would be stronger if the President joined it, but I think the suit is ripe.

There is no doubt in my mind that the Democrats are perpetrating a Constitutional Crisis, and I sincerely hope they are called out on it.

As to whether or not the SCOTUS will take the case, I don't know. The point of this one-sided missive was merely to assert that the issue is legitimately arguable. It is not a cut and dried matter, and if the case is brought, the SCOTUS would be compelled to at least issue an opinion explaining why it is denying to become involved.

"When the people learn they can vote money for themselves from the public treasury .... " the jig is up. Democracy doesn't work, and the founding fathers knew it. History proves it too.

Just so you don't fall for it, that Carson/Palmer exchange never happened. But it IS a funny joke.

THe old exchange between Johnny Carson and Arnold Palmer's wife:

What do you do to give your husband good luck [before a golf tournament]?

I kiss his balls. (deadpanned, a straight answer)

Arnie says, "I bet that makes his putter stand on end."

Oh, the days of live teevee. That was really something.

rcocean's reasoning is simple (pardon me for stepping in), and on reflection, you'll agree. Right now, YOU can call your Senator, and your Senator is apt to listen, because you vote directly for the office. If the state legilature chose the Senator, you'd be looking at your state reps, not so much directly at the Senator. You'd still have influence, it would be less direct. See, e.g., judges, which you don't elect, but have to rely on the good judgement of an executive and Senate for selecting. The system created by the founders is awesome!

There are lots of intertwined points, only one of them being the advise and consent function of the Senate. PJ's suggestion (which I strongly support) would have many ramifications, ultimately reducing the power of the Federal government, and increasing the power of state governments. Less money flowing to DC for redistribution would be a good thing.

Yup. It would be a radical change all right. More power to the states, right pronto.

The subject has been around a looong time. Xthe17th's homepage has most of the good links. Dean's articles ask "why" the change was made, but the explanation is really more "how" to dupe the voters/citizens/subjects. Promise the voter "a free lunch," or support for a pet principle (e.g., prohibition), voila. It's an age-old formula, proven to work.

Heheheheh ---- well, Grey Davis did try to blame the Feds!

It's tilting at windmills now, sort of, but the discussion is turning on a few minds that didn't even know the balance between State and Federal governments, reinforced by the system of selecting Senators envisioned by the founders.

I agree completely, it would be great for the states. But it would also make the state governments more accountable to their citizens. Now, the state governments can blame the Feds, and vice versa. THey like that system because it dilutes accountability. My point is that state governments are about as likely to clamor for a repeal of the 17th as the Senators themselves are.

It's discouraging as all get out, because repeal of the 17th would have lots of benefits.

But I think state governments like the system the way it is too. It gives everybody a chance to blame the other guy. Grassroots lacks the wisdom to request such a change, and in fact, IMO, is inclined to go the other way, e.g., even abolishion of Electoral College.

I'm afraid the people have lost control of their government, and they don't even know it.

What could motivate 2/3rds of the present Senators (or any group of future Senators) to propose a repeal of the 17th? My sense is that they like the system just the way it is.

The alternative of having 2/3rds of the states requesting a Constitutional Convention is a bit frightening, who knows what would come out of that (tightening tinfoil hat).

Landrieu singled out Hatch because he was talking just before her time was scheduled to start. He requested that she yield a minute (to come off GOP time in the next hour) and she flat out said NO! Then she asked a question of Hatch (Do you know waht this 98% number represents?"), and only permitted him a one word answer (He answered, "No."). She was a sight to behold. Must-see Senate drama. Easily my vote for "best" entertainment.

Durbin and Reid tie for being the biggest dirtbags.

Lots of good GOP performers. I won't try to pick, they worked as a good team.

Super-majority is any requirement greater than a simple majority. If 101 people are voting, 51 is a simple majority, but to require 52 to concur would impose a super-majority requirement. In practice, super-majority margins are substantially greater than simple majority.

The 60 votes to invoke cloture comes from Senate Rules, and is expressed, IIRC, as 3/5ths of the members, period (i.e., not 3/5th of the members then present).

The Constitution recites "two thirds," one fifth" (to invoke recording a roll call vote), and "three fourths" (the number of states required to ratify Constitutional amendments).

Owen : 53 - 42 (5 not voting, Edwards, Kerry, Nelson(FL), Inouye & Carper)

Kuhl : 53 - 43 (4 not voting, Edwards, Kerry, Nelson (FL) & Inouye)

Brown : 53 - 43 (4 not voting)

Democrats who prefer to hold an up or down vote are Nelson and Miller, otherwise the vote breaks down exactly on D/R party lines.

http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_108_1.htm <-- Link

Owen : 53 - 42 (5 not voting, Edwards, Kerry, Nelson(FL), Inouye & Carper)

Kuhl : 53 - 43 (4 not voting, Edwards, Kerry, Nelson (FL) & Inouye)

Brown : ???? (Senate site giving server error)

http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_108_1.htm <-- Link