Strengthening Constitutional Self-Government

No Left Turns

Dumbest Lawsuit Ever

Judicial Watch filed what may well be the dumbest lawsuit ever last week, asking a district court in DC to overturn Senate Rule XXII (which permits filibusters) as unconstitutional. Let me say that this is not just imprudent, but boneheaded, stupid, several beers short of a six pack, an order of fries short of a happy meal, as dumb as a sack of hammers . . . you know, not too bright.

First the law. I can’t imagine how on earth they have standing to bring the case, which is to say that they will not be able to show a legally cognizable injury. If the court looks past this initial hurdle, the judge, whether far-left, far-right, or anywhere in between, will dismiss the case as a nonjusticiable political question. Under the political question doctrine, the courts have long stated that they will not hear cases where, for instance, an issue is specifically and constitutionally delegated to another branch. Senate operating procedures falls into just that category. This is a no brainer. The complaint will be dismissed for failure to state a claim upon which relief may be granted.

Then it is politically dumb. Why file a case you are certain to lose? I’ve heard the old saying that there is no such thing as bad publicity, but do you really want to be know as the group who brought such a frivolous suit?

Furthermore, I predict that this lawsuit will have the opposite effect of that intended. Democrats (e.g., Sen. Schumer) will cite to the dismissal of the case as evidence that their interpretation of the filibuster is correct, despite the fact that the court will never actually address the question. Thus, the lawsuit is certain to lose, and will embolden the opposition. Truly, unquestionably dumb.

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