Juan Non-Volokh yesteday called the notion of suing to stop the filibuster of judicial nominees “the dumbest idea I have ever heard.” In response to this, several readers, including this blogger, e-mailed to ask for elaboration. I also pointed to this exchange I had with Brett Marston as a short explanation of why it might not be so dumb. He briefly responded last evening to several of the counter-arguments, including mine.

With respect to my point, he says that it is a rather classic “political question” of the type the courts tend to stay out of. I agree that this is the case, and made that argument with respect to the move by a few Democrats to forestall the Iraq invasion. The fact that the courts won’t tackle an issue, however, says nothing about the Constitutional merits of the claim.

FILED UNDER: Iraq War, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Merv Benson says:

    If the courts do not want to intervene, then they probably would not intervene if the so called nuclear option is used and the Republicans approve all the judicial nominees with a simple majority after changing the rules.

  2. James Joyner says:

    True. I don’t think anyone questions the legality of the Senate changing their rules so that, after four votes, it would comply with the Constitution.