Wow, here's a bit of truly crazy wingnuttery I hadn't heard before:
One of the judges who was blocked, former federal judge Charles Pickering of Mississippi, called the tactic unconstitutional and said it should be ended permanently if it is used again.
Pickering said the Constitution requires a simple majority to approve or reject a nominee. Because a filibuster requires 60 votes to overcome, he said it is an unconstitutional barrier.
"The constitutional solution is the only option if there is another filibuster of a judicial nominee," Pickering said. "Why shouldn't the Constitution be followed?"
Kind of disturbing really. That someone that President Bush would nominate seems not to have read the Constitution.
Article II, Section 2, Clause 2:
He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for[.]
As you can plainly see, the constitution doesn't specify what kind of advice or consent the Senate is supposed to give judicial nominees. So Pickering would be wrong even if the following sentence weren't in the Constitution. Article I, Section 5, Clause 2:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
As we all know, the filibuster is a procedural matter, and the Senate clearly has the right to determine its own rules. Given that they decided a long time ago that you need 60 votes to end debate, there's nothing unconstitutional about it.
But Pickering's weird fantasy seems to raise some points that are kind of funny if you take them to their logical conclusion. If the filibuster of judicial nominations is unconstitutional, does that mean that republican members could sue Democratic members; and that a federal judge could order the Senate to change its rules? Apart from being tremendously activist, wouldn't such a ruling fundamentally damage that most treasured of conservative concepts, the separation of powers?
Also, isn't it a funny irony that a man who Democrats called unfit for the federal bench is actually illustrating how unfit he is while in the process of arguing against the thing that has kept him off the bench. Kind of a mind-fuck, isn't it?
UPDATE: Kagro X has not dissimilar, smarter thoughts.