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Judicial Watch, Inc. v. United States Senate

October 6, 2004


The opinion of the court was delivered by: Colleen Kollar-kotelly, United States District Judge


On May 14, 2003, Judicial Watch, Inc. ("Plaintiff"), a non-profit educational foundation, filed the above-captioned action against the United States Senate, the Secretary of the United States Senate, and the Sergeant at Arms of the United States Senate (collectively, "Defendants"). Through its complaint, Plaintiff seeks to challenge the constitutionality of the Senate filibuster as it applies to judicial nominees. More precisely, Plaintiff contends that the Senate Rules effectively impose a supermajority voting requirement for judicial nominees -- a requirement that is repugnant to the scheme provided under the Constitution and its Advice and Consent Clause. To correct this purportedly unconstitutional exercise of the legislative power, Plaintiff seeks a two-fold remedy: (1) "declaring that Senate Rules XXII and V are unconstitutional as applied to judicial nominees," and (2) "enjoining [the United States Senate] from continuing to prevent votes" on two of President George W. Bush's judicial nominees. Compl. at 9 (request for relief).

Defendants countered by filing a Rule 12(b) motion advancing a tripartite defense on the pleadings: "(a) plaintiff lacks standing under Article III of the Constitution, (b) the Speech or Debate Clause of the Constitution bars this lawsuit, and (c) plaintiff's claims present a non-justiciable political question." Defs.' Mot. To Dismiss at 1. That motion is now fully briefed by both parties.*fn1

After reviewing Defendants' Motion to Dismiss, Plaintiff's Opposition, Defendants' Reply, and the relevant law, the Court shall grant Defendants' Motion to Dismiss.*fn2


Plaintiff Judicial Watch, Inc. is a non-profit, tax-exempt educational organization organized to "increase public understanding of the operations of government and to restore ethics and morality to our nation's public life." Compl. ¶ 5. In order to advance these interests, "Judicial Watch, Inc. utilizes the civil litigation process to obtain and disseminate information to the public...." Id. Plaintiff also views the civil litigation process as a fundamental component of its rights under the First Amendment. Compl. ¶ 6.

Since its inception in 1994, Plaintiff has filed more than one hundred lawsuits in state and federal courts. Compl. ¶ 7. At the time that it filed its complaint, Plaintiff was involved in approximately forty-five lawsuits pending in federal courts in the District of Columbia, "including at least eight matters pending before the U.S. Court of Appeals for the District of Columbia Circuit." Compl. ¶ 8. In addition, at the time that it filed its complaint, Plaintiff had two cases pending before federal courts in Texas. Compl. ¶ 10.

Plaintiff alleges that "[t]he federal courts of the United States currently are experiencing a significant number of vacancies in federal judgeships." Compl. ¶ 11. As of around November 7, 2002, "nine percent (9%) of all federal judgeships were vacant," including "seventeen percent (17%) of federal appellate court judgeships." Id. On May 9, 2003, President George W. Bush declared that "vacancies on the bench and overcrowded court dockets are causing delays for citizens seeking justice." Compl. ¶ 14

As a result of these vacancies, Judicial Watch contends that it "has experienced substantial delays in the disposition of matters pending before the federal courts, and before the D.C. Circuit in particular." Compl. ¶ 15. In an effort to bolster this assertion, Plaintiff cites to two cases before the D.C. Circuit that took seven to eight months beyond the national median to resolve, and four other D.C. Circuit cases that have exceeded, or are likely to exceed, that national median. Id. Under the most favorable construction of these allegations, Plaintiff's appeals having taken up to two years to complete, from filing to disposition. See id.

Plaintiff attributes these delays to the significant number of vacancies on the D.C. Circuit. At the time that Plaintiff filed its complaint, only eight of the twelve active judgeships were filled on the D.C. Circuit. Compl. ¶ 16. Moreover, Plaintiff notes that two of the seventeen allotted judgeships for the Fifth Circuit were vacant at the time that it filed its complaint. Id.

Plaintiff contends that these vacancies fall squarely on the shoulders of "a minority of U.S. Senators attempting to block President Bush's judicial nominees." Compl. ¶ 17. Specifically, a minority of the Senate has successfully blocked the confirmation of former Assistant Solicitor General Miguel Estrada to the UNITED STATES COURT OF APPEALS for the District of Columbia Circuit and Texas Supreme Court Justice Priscilla R. Owen to the United States Court of Appeals for the Fifth Circuit. Compl. ¶¶ 18-22.*fn4

Under its reading of Article I, Section 2 of the Constitution, Plaintiff argues that only fifty-one votes, a simple majority, are required to confirm a judicial nominee. Compl. ¶ 23. Plaintiff also contends that, "[b]ased on published reports, at least a simple majority of fifty-one (51) senators intend to vote in favor of the Estrada and Owen nominations." Compl. ¶ 24. However, Plaintiff alleges that Senate Rules V and XXII have unconstitutionally enabled a minority of senators to frustrate the will of the majority, and prevent the confirmation of these nominees. Compl. ¶ 25-30. The collective effect of these rules is two-fold: based on Senate Rule XXII, sixty votes are needed to confirm most judicial nominees, Compl. ¶ 26-27, and under Senate Rule V, sixty-seven votes are needed to amend the Senate Rules, including Rule XXII, Compl. ¶¶ 29-30. Given the stringent standards under Rule V, Plaintiff argues that it is "extremely unlikely" that the Senate would ever succeed in amending Senate Rule XXII. Compl. ¶ 30.

Plaintiff presents a string of interrelating propositions, ultimately concluding that "[t]he application of Senate Rule XXII and Senate Rule V to the Estrada and Owen nominations has... impaired, and is continuing to impair, both Judicial Watch, Inc.'s public interest mission and the exercise of its First Amendment Rights." Compl. ¶ 31. Plaintiff requests judgment against Defendants:

(1) declaring that Senate Rules XXII and V are unconstitutional as applied to judicial nominees, pursuant to 28 U.S.C. § 2201;

(2) enjoining Defendants from continuing to prevent votes on the nominations former Assistant Solicitor General Estrada and Justice Owen; and

(3) granting any and all other relief the Court deems just and proper. Compl. at 9 (request for relief).


A. Threshold Jurisdictional Inquiry

In this case, Plaintiff asks the Court to hold unconstitutional two standing-rules of the United States Senate and enjoin the use of these devices as they apply to two of President George W. Bush's judicial nominees. The Court, however, cannot proceed to the merits of Plaintiff's claims without first dispensing with Defendants' jurisdictional arguments. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); see also id. at 94-95 ("The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'") (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)). "Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bend them." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). In ascertaining whether or not the Court has authority to hear the merits of Plaintiff's claims, however, "[i]t is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits." Id. at 585; see also Grand Council of the Crees v. ...

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