FILIBUSTER LAWSUIT

So now the filibuster lawsuit seems to be a reality. Good God. Here are some points from a rambling post ("Slouching toward the courtroom") I wrote on this in April:

[T]he hypocrisy involved in such a suit would be staggering: 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. Some have said that Bush v. Gore shows how uncommitted Republicans really are to judicial self-limitation. It would be much harder to counter such a claim if Republicans now sued over something that is arguably a matter of the Senate's constitutional power over its own proceedings.

[. . .] Such a suit would be [an] attempt to use the courts to put political pressure on an opposition that is using tactics which are frustrating but arguably allowed by Senate custom, practice, rules, and constitutional text. Republicans might want to roll the dice at the judicial crap shoot table even though their legal advisors will tell them that a suit is unlikely to succeed. They may also wish to initiate a suit for the headline effect: "Senators Challenge Constitutionality of the Filibuster" or "Senators Seek to Counter Obstructionist Democrats" or something like that. My experience teaching separation of powers cases tells me that the political questions doctrine in such cases is not palatable to most of my students. Imagine the headlines in the conservative press when the Republicans lose: "Judges Throw out Suit (subtext: on Some Silly Narrow Ground that Shows How Corrupt They Really Are)."

So, my recommendation: Republicans, heal yourselves