JW Pushes Lawsuit Against the Senate
While Senate Republicans Stage "Talkathon," JW Takes Action

A liberal minority in the U.S. Senate continues to trample the U.S. Constitution and thwart the will of the Founding Fathers by filibustering President Bush's judicial nominees. And while Senate Republicans recently staged a largely ineffective 39-hour "talkathon" to bring public attention to their plight, Judicial Watch continued to take action in court, filing important motions in support of its lawsuit against the Senate.

Judicial Watch has asked the U.S. District Court for the District of Columbia to declare the use of Senate Rules XXII and V - which require 60 senators to stop a filibuster - unconstitutional when applied to judicial nominees.

"Senate liberals are trying to defend the indefensible - that the minority rules in the U.S. Senate," said JW President Tom Fitton. "The U.S. Constitution says otherwise and the filibuster should be thrown out by the courts."

As the U.S. Senate continues to play politics with the confirmation process, the judicial crisis continues to worsen. On October 9, 2003, the Administrative Office of the U.S. Courts reported that there are 42 vacancies in the federal judiciary, 22 of which have been declared "judicial emergencies" by the Judicial Conference. Caseloads are mounting, more opinions are unpublished rather than published, judicial resolution is delayed, and the circuit courts are unable to exercise their supervisory role over the district courts.

"Clearly, too many senators are putting their political agendas ahead of their constitutional duty and the interests of the American people," continued Fitton.

In response to Judicial Watch's lawsuit, which was initially filed on May 14, 2003, Senate lawyers have attempted to have the case dismissed on technical, and highly specious, grounds, while taking no position on the constitutional issues raised by Judicial Watch.

On October 17, Judicial Watch filed briefs to counter the defendants' attempts to dismiss the case. Among the arguments put forth by Judicial Watch in its legal filings:
  • While bitter judicial confirmation battles are not unusual, the employment of a filibuster to defeat a judicial nominee is exceptional. The Senate has no modern history of filibusters against judicial nominees.
  • The modern filibuster requires an effective 'supermajority' of 60 votes - the minimum number necessary to obtain 'cloture' and end the filibuster - to confirm a judicial nominee. This fundamental shift in the nomination process - empowering a minority of senators at the expense of the majority of the Senate and the President - is both unconstitutional and is harming the proper functioning of the judiciary.
  • Judicial Watch has a long-standing pattern of demonstrated use of the judicial system - the key forum through which Judicial Watch fulfills its mission and exercises its First Amendment rights. Judicial Watch's interest in engaging in public interest litigation is being harmed by judicial vacancies unfilled because of the scheme by a Senate minority to block judicial votes.
  • The number of appellate judges for the District of Columbia and other circuits are mandated by statute. These numbers were selected by Congress as the numbers necessary to "furnish timely judicial remedies." In other words, no judges means no justice.
  • When the Framers intended more than a simple majority to rule, they specifically stated otherwise, such as the two-thirds vote necessary to override a presidential veto. The Appointments Clause of Article II of the Constitution clearly states, the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States." This requires a simple majority of 51 votes.
  • The Framers carefully crafted balance of power between the branches. Minority control over the disposition of judicial nominees greatly strengthens the power of the Senate in relation to the President.
"If the U.S. Senate is allowed to continue its unconstitutional behavior, the judicial nomination process will forever be susceptible to hijacking by a determined minority," said Fitton. "Much is at stake in Judicial Watch's lawsuit, as it may be the last and best hope to obtain confirmation votes for many of President Bush's judicial nominees."






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