Josh Marshall does a great job of explaining the severity of the Republican “constitutional” option :
Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.
. . .
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 don’t even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.
Quite simply, the senate is empowered by the constitution to enact its own rules.
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.
I’m not usually one for slippery slope arguments, but this certainly looks like it would pour a can of oil on our proverbial slope. Would this abrupt decision to declare the Senate rules unconstitutional undermine the entire committee system? That would pretty much grind the Senate to a halt. What would this mean in regards to everything else the Senate has accomplished over the last 200 years? What would this mean for the thousands of pieces of legislation that have been killed in committee over the last two centuries? Is there anything in this precedent that would compell the Senate to reconsider bills that had previously been discarded under the “unconstitutional” rules? Are these few judges really worth opening up this can of worms for?