Prof. Randy Barnett, in his otherwise excellent op-ed on the judicial nomination impasse in Friday's New York Sun, misstates something in discussing the so-called ongoing "filibusters":
Moreover, upping the number of votes needed for confirmation to 60 is not only unprecedented, it is unconstitutional, as the Constitution requires “advice and consent” by a simple majority.
Wrong. The Constitution does not mention a simple majority or any other measure. Of course, the rule that a simple majority decides any given vote (unless the governing document or rules specify otherwise) is an implicit premise in any parliamentary body, but it is not required by the written Constitution.
Indeed, the Constitution is silent on the issue of precisely how the Senate is to provide advice and consent to the President. The pertinent language of Article II, Section 2 simply states:
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.
How the Senate in fact provides that advice and consent is a complex combination of its own rules and long-standing tradition, including presidential traditions. It was George Washington who began the tradition that the Senate not be consulted in advance of nominating Supreme Court Justices. The more literal reading of the provision quoted above would suggest that some advance consultation, perhaps even formalized consultation, would be in order. But it is not done that way, and it has not been done that way since the beginning.
Filibusters and the rules governing cloture are a matter of internal Senate procedure. The Constitution explicitly states (Article I, Section 5) that each house of Congress will "determine the rules of its proceedings", and it will not answer to the other house, the President, or the courts in doing so. The Senate thus has the sole authority over its own rules and procedures. If it were to simply adopt a rule that approval of the President's judicial nominations requires a 60% vote, this may not be consistent with the implicit premise mentioned above, but I am doubtful that the Supreme Court would ever be willing to consider a challenge to such a rule.
Back to the positive. This comment by Barnett hits the target dead center, in discussing the question of whether and which previous decisions should be followed:
Disingenuous defenses of precedent to one side, I think Democrats are right to favor ignoring bad precedent. Supreme Court justices take an oath to uphold the Constitution, not prior Supreme Court rulings.
In other words, being right is preferable to being consistent.
More -- Lawrence Solum's Legal Theory has two long posts on related topics -- whether the President can call a special "Executive Session" meeting of the Senate, and whether the Senate has an affirmative duty to act, that is, to provide advice and consent.
I've predicted it before - some major change will be made.
2:17:50 PM 
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