Judicial Filibusters Unconstitutional?

Talking Points Memo goes into more depth in how Frist wants to end judicial filibusters. As I said below, it takes 67 votes to change the rules of the Senate, and Frist does not have 67 votes. It only takes 51 votes to find a Senate rule to be unconstitutional, so they will claim that the judicial filibuster is unconstitutional.

Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head...

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

The furor among the Republican party, and particularly with the Religious Right, over judges is because they believe that "activist judges" ignore the clear meaning of the constitution and instead twist it to fit their agenda. In order to ensure that the kind of judges they like will be confirmed, they will need to ignore the clear meaning of the constitution and twist it to fit their agenda.