[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… judges of the Supreme Court…
U.S. Constitution, Art. II, § 2, cl. 2. I don't see a lot of that going around. I haven't seen a lot of it going around since the late 1960s (G. Harold Carswell????).
Taking the language apart too far isn't terribly helpful here. For one thing, this is the second independent (grammatical) clause within a section that describes some (but not all) of the President's powers that are ordinarily subject to legislative oversight. Thus, I think it makes little differenceat least, based strictly on grammarwhether the order of events is "Advice," then nominate, then "Consent;" or nominate, then "Advice," then "Consent". However, there is no way to evade both parts of "Advice" and "Consent."
Or is there? Notice who is to provide the "advice and consent": Not the President pro tempore; not the majority or minority leadership; not individual senators on Capital Beat. It is the Senate itself, as a body, in what one can only infer is a formal action. The problem is that "advice" and "consent" overlap only moderately. In terms of logic, then, what does this require? There's a good argument that it requires two separate actions by the Senate: advice, and consent. Advice, of course, has a connotation that the last seven Presidents have had a great deal of difficulty understanding: When Party A is required to provide Party B with advice, that implies that Party B must at least listen to that advice. Not "hear" it with no intention of paying it any heed; but actively consider that advice before making an irrevocable decision. (Neither, on the other hand, does it require Party B to follow that advice.)
Where does this get us? Probably nowhere in the current political climate. This is one of those matters that really requires a consensus understanding of and adherance to unwritten custom by all parties involvedsort of like all government officials referring to the President as "Mr. President," even those who've known him personally and socially for years. (The West Wing underplays the way this works in reality if anything!) That's not going to happen in the kind of political environment we've got. And that's why we're going to see tokenism (etc.) in President Bush's potential slate of nominees and whittling down of that slate as his own (non-Senatorial) political advisors test the reaction to various names.
On the other hand, as inelegant and partisan as the system has become, it sure beats electing judges. The Illinois Supreme Court demonstrated that last fall; it makes me almost ashamed to be a member of the Illinois Bar when the Bar refuses to even publicly question that kind of activity. Judges can certainly have ideologies; we all do, as they're inescapable. What judges cannot be is archly partisan. As I've said repeatedly before, I'd rather be in front of a (or nine) smart judge(s) whose natural inclination is to disagree with the ideology behind whatever position I'm advocating than in front of a partisan hack from "my corner." (That neither major party is anywhere close to "my corner" has little to do with that!) That's what the rule of law is about, and supposed to do. And that's why all but one of the potential candidates who has been proposed who are now sitting judges on the Fifth Circuit are at best marginally acceptable: They're overtly partisan in their decisionmaking. Too, the Fifth Circuit's sorry record in misunderstanding and misinterpreting pretty damned clear Supreme Court precedentsand even case-specific directivesin capital cases gives me little confidence in the judges on that court. The Fifth Circuit's record on civil procedure matters also gives me reason to doubt the propriety of elevating (all but one of) the judges commonly mentioned to the Supreme Court.
I suspect that the best realistic scenario is something like this: President Bush nominates his buddy Alberto Gonzales to fill Justice O'Connor's shoes. The Democrats spend immense quantities of political capital and eventually make themselves look silly when they can't block cloture due to defections. Justice Gonzales is eventually confirmed on a 62-37 vote (one Senator holds out from voting after the fifty-first vote in symbolic protest that debate shouldn't have closed). Within a year thereafter, Chief Justice Rehnquist announces his resignation. President Bush nominates Justice Gonzales to become Chief Justice, and nominates a far more "reliable" conservative to fill Seat 4. One can only hope that he gets another Harry Blackmun.