Here’s a question I’d be eager to hear your thoughts on.
Many readers have written in asking why it wouldn’t either be possible or likely that Dick Cheney’s expected ruling that the judicial filibuster is unconstitutional would not itself spawn a series of lawsuits challenging the constitutionality or legality of his opinion.
Presumably, how this would work, I guess, is that some party would file a suit or, I guess, an appeal challenging the legitimacy of the confirmation of one of the judges that will be seated in the wake of the nuclear option. And the aim would be to get a court, eventually the Supreme Court, no doubt, to review the legitimacy of the set of moves we’ve collectively dubbed ‘the nuclear option’.
Now, my very strong assumption has been that courts would simply treat this as a non-justiciable question, that the senate is the final and sole arbiter of how it conducts its business and interprets its own rules. And I still think that.
But in the last few days I’ve had a number of people write in, who are far more versed in these matters than I am, who suggest that it may well happen. And in a post-Bush v. Gore world, when the Court muscled its way into a contested presidential election and assigned the presidency to the candidate whose party most of them affiliate with, perhaps it’s foolish to put anything by them.
So to all you law profs, lawyers and sundry relevant experts: does this seem even remotely conceivable to you? Again, from my understanding of long-established practice, it doesn’t to me. And as a separate matter, it seems like a very dangerous and ill-advised step to take.
But again, what do people think?