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. He's a former Army officer and Desert Storm veteran. 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.