Senator Kay Bailey Hutchison argues that a Senate filibuster of a judicial candidate amounts to an informal (and illegitimate) constitutional amendment. Larry Craig makes the same argument.

Senators are allowed to create their own procedures: Article I, Section 5: "Each house may determine the rules of its own proceedings. . ." Hutchison's argument is that the constitutionally required default decision rule should be simple majority, because supermajority requirements are spelled out in the constitutional text.

On her side is Article II, Section 2, however, where the phrase "advice and consent" appears. The President's treaty-making power is explicitly limited by a supermajority (2/3) requirement, but the President's nominating power is not so explicitly limited.

Of course arguments have been made for Hutchison's position before: most notably, perhaps, by former Carter administration lawyer Lloyd Cutler.

But it seems to me that the strongest arguments for this approach to the interpretation of constitutional requirements with respect to Senate procedure here are, at the very least, not reducible to a commitment to "strict construction."