IN THE UNITED STATES DISTRICT COURT
Plaintiff, Judicial Watch, Inc., hereby sues the United
States Senate, the Secretary of the United States Senate and the Sergeant
at Arms of the United States for declaratory and injunctive relief,
and as grounds therefor alleges as follows:
JURISDICTION AND VENUE
1. The Court has jurisdiction over this action pursuant
to 28 U.S.C. § 1331, as this action arises under the United States
2. Venue is proper in this district pursuant to 28 U.S.C.
§ 1391(b) and (e).
3. Judicial Watch, Inc. is a non-profit educational foundation
organized under the laws of the District of Columbia and having its
principal place of business at 501 School Street, S.W., Suite 725, Washington,
4. Defendant United States Senate is one of two legislative
chambers that comprise the United States Congress and, as such, is an
integral part of the United States Government. The United States Senate
has its principal place of business at The Capitol in Washington, DC.
The United States Senate is required by the United States Constitution
to give its advice and consent to the President of the United States
on the appointment of judges to the Courts of the United States.
5. Defendant Emily Reynolds is the Secretary of the United
States Senate. Ms. Reynold’s principal place of business is at
The Capitol in Washington, DC. She is being sued in her official capacity.
The duties and responsibilities of the Secretary of the United States
Senate include legislative, financial and administrative functions.
6. Defendant William H. Pickle is the Sergeant at Arms
of the United States Senate. Mr. Pickle’s principal place of business
is at The Capitol in Washington, DC. He is being sued in his official
capacity. The Sergeant at Arms of the United States Senate serves as
the executive officer of the Senate for enforcement of all Senate Rules.
5. Judicial Watch, Inc. is a non-profit, tax-exempt educational
foundation organized to increase public understanding of the operations
of government and to restore ethics and morality to our nation’s
public life. Judicial Watch, Inc. utilizes the civil litigation process
to obtain and disseminate information to the public in furtherance of
its educational mission.
6. Judicial Watch, Inc. also utilizes the civil litigation
process as a means of exercising its First Amendment rights. Judicial
Watch, Inc. prosecutes lawsuit, on its own behalf and on behalf of clients,
to highlight and inform the public about issues Judicial Watch, Inc.
believes are of public importance and to hold public officials accountable.
7. Since its inception in 1994, Judicial Watch, Inc. has
filed more than one hundred lawsuits in state and federal courts across
the country in furtherance of its educational mission. Judicial Watch,
Inc. thus has a concrete and particularized interest in the timely and
efficient functioning of the judiciary, including the appointment of
the full number of judges provided for by 28 U.S.C. § 44.
8. Headquartered in Washington, DC, Judicial Watch, Inc.
files the majority of its lawsuits in federal court in the District
of Columbia. It currently has approximately forty-five (45) lawsuits
pending in the federal courts of the District of Columbia, including
at least eight matters pending before the U.S. Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”). It also
has had a substantial number of matters pending before the D.C. Circuit
in the past.
9. On information and belief, Judicial Watch, Inc. is
second only to the United States Government as the entity with the largest
number of cases pending before the federal courts of the District of
10. Judicial Watch, Inc. also has a significant number
of lawsuits pending in federal courts across the United States, including
Stephens v. Haliburton, No. 3-02CV1442-L, pending in the U.S. District
Court for the Northern District of Texas, and Wilt v. Fastow, No. H-02-0576,
pending in the U.S. District Court for the Southern District of Texas.
Both district courts are within the jurisdiction of the U.S. Court of
Appeals for the Fifth Circuit (“Fifth Circuit”).
11. The federal courts of the United States currently
are experiencing a significant number of vacancies in federal judgeships.
On or about November 7, 2002, President George W. Bush warned that nine
percent (9%) of all federal judgeships were vacant and that seventeen
percent (17%) of federal appellate court judgeships were vacant. See
Edwin Chen and Henry Weinstein, “Liberals Bracing for Quick Judicial
Action by Bush,” The Los Angeles Times, November 7, 2002.
12. Chief Justice William H. Rehnquist also commented
on the significant number of vacancies in the federal courts and their
impact on the federal court system in his 2002 Year-End Report on the
14. As recently as May 9, 2003, President Bush described
the vacancies in federal judgeships as a “crisis in our judiciary,”
as “vacancies on the bench and overcrowded court dockets are causing
delays for citizens seeking justice.” See Charles Hurt, Judicial
Filibuster Rule Change Faces High Hurdle in Senate,” The Washington
Times, May 10, 2003.
15. Judicial Watch, Inc. has experienced substantial delays
in the disposition of matters pending before the federal courts, and
before the D.C. Circuit in particular. In 2002, the median time necessary
to complete an appeal in the federal system, measured from the filing
of a notice of appeal to final disposition, was 10.7 months. However,
appeals to the D.C. Circuit in which Judicial Watch, Inc. has been involved
during this same time period have taken much longer, as the following
examples of Judicial Watch, Inc. cases demonstrate:
16. The D.C. Circuit is experiencing a particularly severe
shortage of judges. One-third of the D.C. Circuit’s judgeships
remain vacant. Of the twelve (12) judgeships allotted to the D.C. Circuit
(see 28 U.S.C. § 44), only eight (8) of these positions are occupied
by active, full-time judges. Two (2) of the seventeen (17) judges allotted
to the Fifth Circuit are vacant. See 28 U.S.C. § 44.
18. On or about May 9, 2001, President Bush nominated
former Assistant Solicitor General Miguel Estrada and Texas Supreme
Court Justice Priscilla R. Owen to vacant judgeships on the D.C. Circuit
and the Fifth Circuit, respectively.
19. The judgeship to which President Bush nominated former
Assistant Solicitor General Estrada has been vacant since approximately
November 16, 1999, when former Circuit Judge Patricia M. Wald retired.
The judgeship to which President Bush nominated Justice Owen has been
vacant since approximately January 23, 1997, when Circuit Judge William
L. Garwood took on senior status.
20. Both former Assistant Solicitor General Estrada and
Justice Owen were rated “well qualified” by the American
21. Nonetheless, the U.S. Senate failed to confirm both
nominees. The Senate Judiciary Committee rejected Justice Owen’s
nomination in 2002, and the U.S. Senate as a whole failed to vote on
the merits of former Assistant Solicitor General Estrada’s nomination
at any point during that year.
22. On or about January 7, 2003, President Bush renominated
Justice Owen. Assistant Solicitor General Estrada’s nomination
remains pending before the U.S. Senate by reason of the Senate’s
failure to vote on the merits of the nomination.
23. Article II, Section 2 of the U.S. Constitution requires
a simple majority of only fifty-one (51) votes for the U.S. Senate to
confirm a judicial nominee.
24. Based upon published reports, at least a simple majority
of fifty-one (51) U.S. senators intend to vote in favor of the Estrada
and Owen nominations.
26. Rule XXII requires a supermajority of sixty (60) votes
to end debate on a topic, a process known as “cloture.”
By refusing to end debate on the two nominations, a minority of between
thirty-nine (39) and forty-five (45) senators have prevented and are
continuing to prevent former Assistant Solicitor General Estrada and
Justice Owen from being confirmed.
27. The application of Rule XXII to these nominations
thus imposes an additional, unconstitutional requirement that judicial
nominees be confirmed by a supermajority of sixty (60) votes rather
than the simple majority of fifty-one (51) votes required by Article
II, Section 2 of the United States Constitution.
28. As recently as May 8, 2003, forty-three (43) senators
voted against cloture on the Estrada nomination and forty-five (45)
senators voted against cloture on the Owen nomination.
29. Importantly, Senate Rule XXII was amended in 1959
to require an even larger supermajority of sixty-seven (67) votes for
cloture on any motion to amend the Senate Rules. In addition, Senate
Rule V preserves all Senate Rules from one session to the next. Consequently,
the current session of the U.S. Senate can only amend Senate Rule XXII
by a two-thirds supermajority.
31. Judicial Watch, Inc. has suffered and is continuing
to suffer significant, irreparable harm by reason of the unconstitutional
application of Senate Rule XXII and Senate Rule V to the Estrada and
Owen nominations. But for the efforts of a minority of U.S. senators
to use Senate Rules XXII and V to prevent the confirmation of former
Assistant Solicitor General Estrada and Justice Owen to federal judgeships,
these well-qualified judicial nominees would have been confirmed, and
will be confirmed, for appointments to the D.C. Circuit and Fifth Circuit,
respectively, and their confirmations would have lessened, and will
lessen, the high vacancy rates and resulting significant and prejudicial
delays experienced by Judicial Watch, Inc. in litigating in the federal
courts. The application of Senate Rule XXII and Senate Rule V to the
Estrada and Owen nominations has thus impaired, and is continuing to
impair, both Judicial Watch, Inc.’s public interest mission and
the exercise of its First Amendment Rights.
Attorneys for Plaintiff