Brett Marston smells it in calls for Republicans to sue to end unconstitutional filibustering. His reasoning?
Republicans have gotten involved in the nominations fight with Democrats because of a professed belief that courts have been too powerful and activist in the first place. One should put this question to the Senate Republican caucus: Is the political question doctrine now itself a heritage of judicial activism (namely, activism with respect to powers of judicial self-limitation)? A lawsuit would show that the Republicans want to have their cake and eat it, too, by attacking judicial power when it suits them, but also calling upon that power when it suits them.
I agree that many Republicans–and Democrats–use the term “judicial activism” to mean “the Court ruled in a way I didn’t like.” Still, I don’t think this particular issue is a matter of hypocrisy.
Personally, I think Marbury v. Madison, the 1803 case in which the Court made up the power of judicial review, was wrongly decided. But the premise of that case was that Congress couldn’t by legislation change something in the Constitution. In that case, adding to the original jurisdiction of the Supreme Court. By that logic, the Republicans have a case here. The Constitution lists a very small number of things which require a super-majority vote in the Congress: off the top of my head, proposal of Constitutional amendments, Senate approval of treaties, and removal from office of impeached officials; there may be others. Confirmation of presidential appointees is not among them.
I would say that, if the Court were to rule the filibuster unconstitutional, it would have to do so across the board, not just with respect to confirmation of nominees.