UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

JUDICIAL WATCH, INC.,

Plaintiff,                       

v.                                                                                Case No.  1:03CV01066 (CKK)

THE UNITED STATES SENATE, et al.,

Defendants.

____________________________________

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND

PLAINTIFF’S MEMORANDUM IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

JUDICIAL WATCH, INC.

                                                                                    Paul J. Orfanedes

                                                                                    D.C. Bar No. 429716

                                                                                    James F. Peterson

                                                                                    D.C. Bar No. 450171

                                                                                    Suite 500

                                                                                    501 School Street, S.W.

                                                                                    Washington, D.C.  20024

                                                                                    (202) 646-5172

October 17, 2003                                                        Attorneys for Plaintiff
TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

            A.        The Crisis in Judicial Appointments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

            B.         The Growing Crisis:  Current and Planned Filibusters. . . . . . . . . . . . . . . . 5

            C.        Why Judicial Watch Is Bringing This Case. . . . . . . . . . . . . . . . . . . . . . . . .6     

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STANDARD OF REVIEW FOR MOTION TO DISMISS . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

            I.          Judicial Watch Has Standing To Bring This Suit. . . . . . . . . . . . . . . . . . . . 8

A. Judicial Watch’s Complaint Clearly Establishes An

            Injury-In-Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Judicial Watch’s injury qualifies as a

legally protected interest . . . . . . . . . . . . . . . . . . . . . . . . . .12

2. Judicial Watch has properly asserted its

own legally protected interests . . . . . . . . . . . . . . . . . . . . . 13

3. Judicial Watch’s injury is actual and

particularized . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . .15

                                    B.         Judicial Watch’s Injury Is Fairly Traceable To Defendants . . . . .16

                                    C.        Plaintiff’s Injury Is Likely To Be Redressed By

                                                A Favorable Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. The Speech or Debate Clause Does Not Prevent

            Judicial Review of This Action. . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . .19

III. THIS CASE DOES NOT PRESENT AN

            UNREVIEWABLE “POLITICAL QUESTION” . . . . . . . . . . . . . . . . . .  22

A. The Senate’s Power to Determine its Internal Rules of

                        Proceedings Does Not Insulate the Rule from

                        Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  23

                        B.         Judicially Manageable Standards Are Available to

                                    Adjudicate This Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

C.        Adjudication of This Action Does Not Demonstrate

a Lack of Respect for a Coordinate Branch . . . . . . . . . . . . . . . . . 25

1. Courts Have Routinely Reviewed

            Congressional Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2. Cases Relating to the Proper Functioning of

the Judiciary Are Justiciable  . . . . . . . . . . . . . . . . . . . . . . 27

IV. LEGAL STANDARD FOR MOTION FOR

            SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

V. AN EFFECTIVE SUPERMAJORITY REQUIREMENT

            FOR JUDICIAL NOMINEES IS UNCONSTITUTIONAL . . . . . . . . . . 28

A. Supreme Court Precedent  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

B. The Constitution’s Enumerated Supermajority

Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

C. The Constitutional Text Confirms Majority Governance . . . . . .  34

D. The Framers Adopted Confirmation by Majority Vote . . . . . . . . 35

E. Commentary Contemporaneous with Ratification . . . . . . . . . . . . 36

F. The Early Senate’s Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 37

G. Minority Control over Judicial Confirmations Alter

Balance between Branches . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  38

                        H.        The Proper Functioning of the Judiciary Is At Risk . . . . . . . . . .  38

VI. THE SUPERMAJORITY REQUIREMENT FOR CHANGING

RULE XXII IS UNCONSTITUTIONAL . . . . . . . . . . . . . . . . . . . . . . . .  40

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  42

            Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by counsel, respectfully submits this opposition to Defendants’ Motion to Dismiss (“Mem. at ___.”).  Because no issues of material fact are in dispute, Plaintiff also cross-moves for summary judgment and submits this memorandum in support for its cross-motion for summary judgment on the constitutionality of Senate Rules XXII and V as applied to judicial nominations.

INTRODUCTION

On September 4, 2003, former Assistant Solicitor General Miguel Estrada withdrew his nomination to the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), even though a majority of the U.S. Senate openly and repeatedly supported his confirmation.  Estrada, an exceptionally well-qualified nominee,^[1] withdrew because of an unprecedented filibuster by a distinct minority of the Senate.  The withdrawal of Estrada’s nomination dramatically demonstrates the escalating crisis in the constitutionally-ordained system of judicial appointment.  Estrada also gains the unique, if unwanted, distinction of the first-ever circuit court nominee defeated by a filibuster. 

            While bitter judicial confirmation battles are not unusual, the employment of a filibuster to defeat a judicial nominee is exceptional.  Not even the hotly contested nominations of Robert Bork or Clarence Thomas emboldened senators opposing the nominations to break with tradition and launch a filibuster.  With only one even arguable exception,^[2] the Senate simply has no modern history of filibusters against judicial nominees.[3]  At no point in their lengthy review of the Senate’s history and customs do Defendants contend otherwise.

            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.  This lawsuit is intended address both of these serious concerns.  It is critical that the Court hear this important case.

BACKGROUND

The popular image of a filibuster – marathon speech-making, reading from cookbooks, and even heroic defiance in defense of one’s principles – is now a distant memory.  In “Mr. Smith Goes to Washington,” an idealistic new Senator filibusters for twenty-three (23) hours, while fighting against exhaustion and congressional corruption.[4] Seeking to block action on the 1964 Civil Rights Act, eighteen (18) Southern Democrats and one Republican, for a record seventy-five (75) days.  The longest individual filibuster was accomplished, or endured, by Strom Thurmond, who prepared by dehydrating himself in a sauna before taking to the Senate floor for over twenty-four (24) hours to block a vote on a 1957 civil-rights bill.  See Alan McConagha, Inside Politics, The Washington Times, at A6 (August 17, 1994).

The “modern” filibuster is more accurately called the “lazy-person’s” filibuster.  It has become so ubiquitous and comfortable that there is no longer any need to silence an objecting senator.  After signaling his intent to filibuster, a senator may leave the Capitol building, or even leave town, secure in knowing that the sixty (60) vote requirement has been invoked.  The Senate, generally, will move on to other business, without any requirement that the senator be prepared to follow through on the filibuster threat.  This is the so-called “two-track system.”  Once a filibuster is threatened, debate stops, and the Senate proceeds with other business.  The measure subject to the threatened filibuster is simply put on hold until the next cloture vote.  This modern filibuster has been described as a “casual, gentlemanly, good-guy filibuster . . . Everybody goes home and gets a good night's sleep, and everybody protects everybody else.”   William J. Eaton, Is There No End To Delays In Senate? Try A Real Filibuster, L.A. Times, at A5 (Aug. 19, 1993) (quoting Sen. Robert C. Byrd).

As such, the modern filibuster has become easy to invoke and painless to pursue.  Once a tactic reserved for unique issues, the modern filibuster evolved into the weapon of choice for those in a minority position.  This year, however, the filibuster has evolved from a tactic against legislation to an effective veto against judicial nominees.  With only forty-one (41) votes, a minority of senators can block any action on a nominee in perpetuity.  Hence, Miguel Estrada withdrew his nomination after twenty-eight (28) exhausting months from when he was first nominated.  Seven failed cloture votes in Senate demonstrated conclusively that an obstructionist minority opposing his confirmation could effortlessly outlast him.  Ironically, the filibuster used to be an endurance test for a Senator hoping to prove a point.  Today, the filibuster still is an endurance test – but for the nominees who are courageous enough to risk being on the receiving end of the perpetual “lazy-person’s” filibuster.

A.        The Crisis in Judicial Appointments

Senator Zell Miller (D-Ga.) recently summarized the current status of judicial appointment process in the Senate:

Today, the U.S. Senate is tied in a Gordian Knot with two filibusters quietly going on to prevent a simple up or down vote on the President’s nominees to the Judiciary. And unless we find a way to untie that knot, the meaning of “advise and consent” is going to be changed forever. In fact, the Democratic process and the confirmation process, as we have known it since the birth of this nation will be changed forever.

I am not being overly dramatic. For the precedent will be established, whether we mean to or not, that 41 sore losers can always win over 59 advocates. What kind of new math is that? 41 beating 59? Yet, it will become standard operating procedure.

Hearing on Senate Rule XXII Before the Senate Committee on Rules and Administration, 108^th Cong. (June 5, 2003).

            As of October 9, 2003, the Administrative Office of the U.S. Courts reported that there are 42 (18 appellate and 24 district court) vacancies out of 877 seats in the federal judiciary.  Of these vacancies, currently 22 of these vacancies have been declared judicial emergencies[5] by the Judicial Conference. 

The heads of two branches of the federal government have declared a crisis in judicial vacancies: 

Chief Justice Rehnquist: The high number of vacancies in the federal court system have been cited as a serious issue for three consecutive years. 

President Bush:  Current judicial vacancies constitute a “crisis in our judiciary” as vacancies are causing “delays for citizens seeking justice.” 

Compl. ¶¶ 12 and 14.

This crisis in filling vacancies comes amidst the increasing caseload of the federal courts.  Compl. ¶ 13 (citing record number of appellate filings in 2002 of 57, 555).

The legal profession also has recognized this growing crisis.  While deploring the “spectacle” of the “Estrada filibuster,” the President of the American Bar Association (“ABA”) warned of the “secondary effect current intramural disputes will have on a legion of other nominees – all awaiting hearings or confirmation, many for months or even years at a time, having all put professional careers and private lives on hold.”  President's Message, Alfred P. Carlton Jr., More and Faster -- Now: The Crisis in the Federal Judiciary, 89 A.B.A.J. 8 (April 2003).  The ABA’s president concurred that the current judicial appointments process has created a “crisis in our federal judiciary, constituting a clear and present danger to the uniquely American foundation of our tripartite democracy -- an independent judiciary.”  Id.

These very real harms to the proper functioning of the judiciary, and to organizations such as Judicial Watch that make frequent use of the judicial system, are now being exacerbated by the unprecedented filibuster of judicial nominees.

B.        The Growing Crisis:  Current and Planned Filibusters

The minority of obstructionist senators who defeated the Estrada nomination has boasted openly of their intentions to continue and expand their filibusters of other judicial nominees.  See Jesse J. Holland, Democrats Emboldened By Estrada Withdrawal, Associated Press (Sept. 5, 2003).  Since Judicial Watch filed its Complaint in this action, this same minority of obstructionist senators has begun a filibuster of Alabama Attorney General William Pryor’s nomination to the U.S. Court of Appeals for the Eleventh Circuit, with more to follow.

Appeals court nominees currently subject to filibuster or likely to be filibustered are:

1. Priscilla R. Owen (5^th Cir. Nominee):  Nominated May 9, 2001, not reported out of committee; re-nominated Jan. 7. 2003, brought to floor April 7, 2003, and, according to Defendants “subjected to prolonged debate” since that time (Mem. at 7); three cloture motions have received a majority but fewer than 60 votes; filibuster continues.

2. William H. Pryor, Jr. (11^th Cir. Nominee):  Nominated April 9, 2003; subjected to filibuster since July 29, 2003; filibuster continues;

3. Carolyn B. Kuhl (9^th Cir. Nominee):  Filibuster planned;

4. Charles Pickering (5^th Cir. Nominee):  Filibuster planned.

5. Janice Rogers Brown (D.C. Cir. Nominee):  Filibuster threatened when nomination reaches floor;

6. Brett M. Kavanaugh (D.C. Cir. Nominee):  Filibuster under consideration;

7. Claude A. Allen (4^th Cir. Nominee):  Filibuster threatened when nomination reaches floor.

Jonathan Groner, Pickering Nomination May Go Way of Estrada, American Law Media’s The Recorder (Oct. 10, 2003); Robert S. Greenberger, Estrada’s Withdrawal May Spur Political Bickering, The Wall St. Journal, at B2 (Sept. 5, 2003); Jonathan Groner, What Estrada's Withdrawal Means for Other Nominees, American Law Media’s The Recorder (Sept. 10, 2003); Helen Dewar, Estrada Abandons Court Bid, The Washington Post, at A1 (Sept. 5, 2003); Associated Press Online, GOP Senators Gear for Judge Nominee Fight, Sept. 24, 2003; Stephen Dinan, Democrats in Senate Block Another Judge, The Washington Times (Aug. 1, 2003); Stephen Dinan, Liberals Assail Bush Pick for Federal Court in D.C.: Conservative Black Woman Draws NAACP Fire, The Washington Times (Aug. 29, 2003).

C.        Why Judicial Watch Is Bringing This Case

            This is not a case about partisanship.  Judicial Watch is a nonprofit, educational organization dedicated to increasing public understanding of the operations of government by investigating and prosecuting government corruption.   Judicial Watch has brought notable and successful lawsuits against officials of both the Clinton and Bush administrations.  Importantly, Judicial Watch uses the civil litigation process as the primary means through which it obtains and disseminates information to the public in furtherance of its educational mission.  It also is the primary means through which Judicial Watch exercises its First Amendment rights.  Thus Judicial Watch has an obvious and compelling interest in the efficient and proper functioning of the judiciary.  Any breakdown in the judicial appointments process impairs the proper functioning of the judiciary and harms Judicial Watch.

SUMMARY OF ARGUMENT

            Defendants’ motion to dismiss addresses issues of standing and justiciability only.  Under well-established precedent in this circuit, Judicial Watch, with its long-standing use of the judicial process to gather and disseminate information and to exercise its First Amendment rights, has suffered concrete and particularized injury reason of the unconstitutional use of the filibuster to thwart judicial nominations.  Title 28 of the U.S. Code, section 44, mandates the number of active judges who “shall” be appointed to each judicial circuit, and a minority of obstructionist senators is using filibusters to prevent qualified nominees, who otherwise would be confirmed, from filling judicial vacancies.

There is nothing about the continuing use of filibusters to prevent the confirmation of judicial nominees that is hypothetical or contingent, nor are Judicial Watch’s injuries hypothetical or contingent.  Moreover, because the issues raised in this litigation – the constitutionality of Senate rules –have been reviewed repeatedly by courts in prior cases, these issues are fully justiciable.  Neither the immunity granted under the Speech or Debate Clause nor the political question doctrine prevents the Court from reviewing Judicial Watch’s claims.

            As this case presents only legal issues, Judicial Watch is cross-moving for summary judgment.  Because Senate Rules XXII and V imposed a supermajority requirement in the confirmation of judicial nominees that is contrary to the clear language of the U.S. Constitution, this Court should declare them unconstitutional as applied to judicial nominees.  These rules are not mere rules of Senate procedure.  They alter the constitutionally-prescribed process for providing “advice and consent” on judicial nominations and allow an obstructionist minority of senators to effectively kill any nomination.  They also contain an unconstitutionally-entrenched requirement that obstructs any effort to change the Senate’s rules.

            Finally, contrary to Defendants’ complaints, Judicial Watch does not ask the Court to intrude inappropriately on congressional affairs.  A declaration that Rules XXII and V are unconstitutional as applied to judicial nominations will simply require the U.S. Senate to conform its rules to the language of the Constitution. 

STANDARD OF REVIEW FOR MOTION TO DISMISS

In considering a motion to dismiss, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.”  Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kenneda v. United States, 880 F.2d 1439, 1442 (D.C. Cir. 1989).  The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Shear v. National Rifle Ass’n, 606 F.2d 1251, 1253 (D.C. Cir. 1979).  Finally, a plaintiff is entitled to all favorable inferences that may be drawn from those allegations.  Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

ARGUMENT

I.          Judicial Watch Has Standing To Bring This Suit.

            The three essential requirements of standing are well-settled.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  These requirements are as follows:

First, the plaintiff must have suffered an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.  Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.  Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 560-61 (citations omitted); see also United States v. Hays, 515 U.S. 737, 743 (1995).  Well-established precedent in this circuit supports Judicial Watch’s standing based on a long-standing pattern of use and demonstrated interest in the judicial system – the key forum through which Judicial Watch fulfills its mission and exercises its First Amendment rights.

            The Complaint clearly establishes that Judicial Watch satisfies all three elements of standing.  In order to demonstrate each element of standing, Judicial Watch need only state “general factual allegations of injury resulting from defendant’s conduct . . . [because] we presume that general allegations embrace those specific facts that are necessary to support the claim.”  Id. at 561.  The Complaint plainly contains sufficient allegations to support Judicial Watch’s claims.  In addition, the allegations of the Complaint have been expanded upon further in the attached affidavit of Judicial Watch’s president, Thomas J. Fitton.

            First, Judicial Watch has suffered an injury-in-fact, namely, harm to the proper functioning of the judiciary caused by unfilled vacancies in the U.S. Courts of Appeal.  This injury is concrete, particularized and actual; it is not merely a generalized injury that could happen.  Rather, the vacancies are real, and harm to the efficient and proper functioning of the federal court system caused by the unconstitutional acts of a minority of obstructionist senators has injured Judicial Watch and undoubtedly will continue to injure Judicial Watch unless relief is granted. 

Second, Judicial Watch’s injury is fairly traceable to Defendants.  The injury is not the result of any independent third-party action.  The facts demonstrate that the only reason more judicial positions have not been filled, in particular by former Assistant Solicitor General Estrada, Justice Owen, and Attorney General Pryor is the result of Senate Rules XXII and V.  The confirmation process has been usurped by a minority of obstructionist senators that are misusing these rules.

            Third, the requested relief will redress Judicial Watch’s injury.  If Senate Rules XXII and V are declared unconstitutional in the context of judicial confirmation proceedings, the current majority of senators can confirm currently pending nominees, including Justice Owen and Attorney General Pryor. 

            Because it has satisfied each element, Judicial Watch has standing to maintain this action.  Accordingly, Defendants’ motion to dismiss must be denied.

A.        Judicial Watch’s Complaint Clearly Establishes An Injury-In-Fact.

                        The first element of Article III standing requires that the plaintiff demonstrate an injury-in-fact, i.e., the plaintiff must have a “direct stake” in the controversy.  See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687 (1973) (“SCRAP”); Lujan, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice”). Judicial Watch’s allegations of injury fit comfortably within decisions of the D.C. Circuit and the U.S. Supreme Court recognizing that harm to a plaintiff’s demonstrated interests and long-standing pattern of use is sufficient to establish an injury-in-fact.  See, e.g., Animal Legal Def. Fund v. Glickman, 154 F.3d 426, 432 (D.C. Cir. 1998) (en banc) (“Glickman”).  Recent cases well illustrate the scope of the injury-in-fact standard.

Glickman involved a challenge to the adequacy of statutorily-mandated regulations promulgated by the U.S. Department of Agriculture.  Id. at 428.  The plaintiff had standing to challenge the regulation on the basis that he had suffered injury to his “aesthetic” interest in observing animals.  Glickman, 154 F.3d at 431.  He regularly visited a particular zoo to observe the animals and saw conditions to which he objected, such as chimpanzees housed in isolation (causing social deprivation) and other conditions he believed to be inhumane.  Id. at 429-30.  These visits, in addition to his desire and plan to visit the zoo in the future, were sufficient allegations to establish an injury-in-fact. Id. at 431-32.  The key factor, according to the D.C. Circuit, was that the plaintiff “suffered his injury in a personal and individual way . . . .”  Id. at 433.

The U.S. Supreme Court employed similar reasoning in an analogous case. In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181-82 (2000) (“Laidlaw”), the plaintiffs were injured by the defendant’s discharging pollutants into a river, alleged in violation of environmental regulations.  The Court noted that some of plaintiffs’ members had used the river and its environs for recreational activities in the past, including fishing, picnicking, and bird watching.  Id.  The members complained that, because of the pollution discharged by defendants, they had not gone back to the river, but would have done so if the discharges ceased.  The Court found injury in fact: the discharges affected the members’ “recreational, aesthetic, and economic interests,” and the members’ conditional statements about visiting the river again could not be dismissed as mere speculation.  Id. at 184.  As in Glickman, allegations of injury-in-fact were sufficient because of an established pattern of use by the plaintiffs and plaintiff’s planned future use.  See also Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C. Cir. 1996) (standing to bring challenge to governmental action established by “aesthetic and environmental” interest in limiting forest fires).

Finally, Michel v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994), a case arose in yet another context, illustrates the same injury-in-fact standard.  In Michel, the Court held that three individual voters had standing to challenge internal rules of the U.S. House of Representatives that granted voting rights to “delegates.”  The voters alleged that, because the delegates’ votes diluted the voting power of their own respective representatives, the voters’ own voting power had been diluted.  Critically, the D.C. Circuit accepted that the voters’ injuries were “generalized” and “diffuse,” but still found sufficient injury to confer standing on the voters.  Id.  Despite the fact that the alleged reduction in voting power was spread over all voters in the United States, the Court concluded that, even though “all voters in the states suffer this injury . . . [that] does not make it an ‘abstract’ one.”  Id.

Like the voters’ interest in the proper functioning of Congress in Michel, Judicial Watch has a long-standing pattern of use and demonstrated interest in the federal judicial system.  Judicial Watch’s interest, however, is far less “diffuse” or “generalized” than the interests of the voters in Michel.  Judicial Watch’s clear harm and injury-in-fact resembles – and is, in fact, far stronger – than the plaintiffs’ interests in Glickman and Laidlaw.  Judicial Watch’s mission increases the public understanding of the operations of government.  See Compl. ¶5; Glickman, 154 F.3d at 432.  To achieve this public interest mission, Judicial Watch routinely utilized the litigation process to obtain and disseminate information about the operations of government and  exercises its First Amendment rights, and has every intention of continuing to do so.  See Fitton Aff. ¶¶ 4-8; Compl. ¶6.  Hence, Judicial Watch has a long-standing pattern and well-established demonstrable interest in the proper and efficient functioning of the judicial system and the efficient administration of justice as mandated under 28 U.S.C. § 44. 

This is entirely comparable to and far more significant than the interests of the plaintiffs in Glickman and Laidlaw.  If the law protects fishing, picnicking, and looking at monkeys, it surely protects engaging in public interest litigation.  Because Judicial Watch’s interest in engaging in public interest litigation is being harmed by judicial vacancies unfilled because of Defendants’ unconstitutional use of the filibuster and Senate Rules XXII and V.  As a result, Judicial Watch is suffering a concrete and particularized injury as a result of the diminished functioning of the judicial system, and the consequent limit on its exercise of its First Amendment rights.  See Compl. ¶¶15, 16, 31.

1.         Judicial Watch’s injury qualifies as a legally protected interest.

                        Contrary to Defendants’ allegations, Judicial Watch’s asserted injury-in-fact qualifies as a “legally protected interest.”  Mem. at 23-25.   Judicial Watch’s legally protected interest is the harm to the proper functioning of the judiciary caused by the application of Senate Rules XXII and V to judicial nominations and the vacancies in violation of 28 U.S.C. § 44.  Judicial Watch also plainly asserts its First Amendment right – clearly legally protected interest – namely, the right to petition.  Compl., ¶31; See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (“We have recognized this right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights, by the very idea of government, republican in form.”).  The U.S. Supreme has stated unambiguously that litigation is “form of political expression,” NAACP v. Button, 371 U.S. 415, 429 (1963), and a right “protected under the First Amendment’s guarantee of free speech and the right to petition.”  Laker Airways Ltd. v. Pan Am. World Airways, Inc., 604 F. Supp. 280, 288 n. 32 (D.D.C. 1984) (citing United Mine Workers of Am. v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)).

Defendants also overlook the critical fact that Judicial Watch’s claim is statutorily grounded in 28 U.S.C. § 44.  The statutorily-mandated number of judges in, for example, the D.C., Fifth, and Eleventh Circuits, has not been met, and an indisputable cause is Senate Rules XXII and V.  For example, Congress mandated that the D.C. Circuit “shall” have 12 judges and the Fifth Circuit “shall” have 17 judges to maintain the timely and efficient administration of justice in these Circuits.  28 U.S.C. § 44 (emphasis added).  Because of Rules XXII and V, the statutory mandate has not been upheld and has resulted in an injury to Judicial Watch’s legally protected interests. 

Further, Defendants’ cavalierly disregard Judicial Watch’s interest in the efficient administration of justice.  A litigant in the federal courts does have a right to the proper administration of justice.  Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 541 (9^th cir 1984) (en banc) (“The federal litigant has a personal right, subject to exceptions in certain classes of cases, to demand Article III adjudication of a civil suit.”); see also Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 707 (9^th Cir. 1992) (“we do not discount the possibility that litigation delays in certain circumstances could effectively deprive individual litigants of the ability to vindicate fundamental rights”).  Moreover, fundamental due process requires that, having created the federal court system to administer justice, the Senate – much less an obstructionist minority of the Senate – cannot sabotage the propering functioning of the court system.  Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (holding that although state had no responsibility to confer property interest in government employment, it was obligated to follow constitutionally mandated procedures to terminate right once it was created). 

Here, Judicial Watch has a legally protected interest in an efficient and properly functioning judiciary. 

2.         Judicial Watch has properly asserted its own legally protected interests.

                        Defendants also assert that Judicial Watch failed to establish an injury-in-fact because it has not properly asserted its own legally protected interests in that “an attorney cannot assert in his own name a claim based on the interests of his client . . . .”  Mem. at 25-27 Defendants again are mistaken.

            Judicial Watch has asserted its own legal interests, both as a plaintiff in many cases and as an attorney in other cases.  Defendants make much of the point that Judicial Watch is the named plaintiff in only one of the examples included in the Complaint.  Mem. at 25.  While In re Cheney, No. 02-5354 (D.C. Cir.) was the only example cited in the Complaint in which Judicial Watch was the plaintiff, the few examples used in the Complaint, were just that – a few examples.  As set forth in the attached Affidavit of Thomas J. Fitton and accompanying exhibits, Judicial Watch has been a party in numerous cases in the D.C. Circuit, and many other federal courts, since 1995. 

            Defendants’ reliance on Goodman v. Federal Communications Comm’n, is misplaced.  Mem. at 25; 183 F.3d 987 (D.C. Cir. 1999) (“plaintiff must, in the ordinary case, ‘assert [its] own legal interests, rather than those of third parties.”).   Contrary to Defendants’ suggestion, Goodman actually stands for the proposition that a party must ordinarily assert his own rights, but it does not stand for the assertion that Judicial Watch, as an attorney, has failed to do that.  Goodman, 183 F.3d at 992. 

Significantly, Defendants do not dispute that an attorney cannot suffer an injury to legally protected interests – as an attorney.  Judicial Watch prosecutes lawsuits, on its own behalf and on behalf of clients, to highlight and inform the public about issues Judicial Watch believes are of public importance.  Fitton Aff. ¶¶ 5-7.  When not representing itself directly, Judicial Watch carefully selects clients whose cases raise issues it believes are of public importance, then prosecutes those cases as a means of expressing its viewpoint in the public fora of the courts.  NAACP v. Button, 371 U.S. 415, 429 (1963) (litigation is “form of political expression); Laker Airways Ltd. v. Pan Am. World Airways, Inc., 604 F. Supp. 280, 288 n. 32 (D.D.C. 1984) (litigation is a right “protected under the First Amendment’s guarantee of free speech and the right to petition”). 

For example, this week, October 15, 2003, Judicial Watch filed a class action lawsuit in this Court, Briscoe, et al. v. Potter, et al., 1:03-CV-2084 (RMC) on behalf of six (6) postal workers who suffered damages after being exposed to “weaponized” anthrax spores at the Brentwood Postal facility in October 2001. Fitton Aff. ¶ 6.  Judicial Watch believes the treatment of these postal workers by their supervisors – who falsely represented that the plant was safe when they clearly knew or should have known otherwise – was unethical, immoral, and unlawful.  Id.  Judicial Watch agreed to represent the plaintiffs in Briscoe in order to express its views about the unlawful maltreatment of these workers and to hold the responsible public officials accountable.  Id.

As such, Judicial Watch – in its role as an advocate for the public interest – has been individually harmed by the unconstitutional filibusters made possible under Senate Rules XXII and V.  Judicial Watch has suffered injury, both as a plaintiff and as an attorney, and has properly asserted its own legally protected interests.

3.         Judicial Watch’s injury is actual and particularized.

                        Defendants assert that Judicial Watch’s injury is not actual or imminent in regard to the vacancies in the Fifth Circuit.  Mem. at 27; Compl. ¶¶10, 31.  Defendants state that Judicial Watch’s two cases pending in the federal district courts in Texas are merely a “threatened injury” which does not constitute an injury-in-fact.^[6] Mem. at 27.  Because Judicial Watch’s frequent use of the judicial system, it is entirely plausible that these or other Judicial Watch cases will advance to the Fifth Circuit in the near future.  Significantly, future harm is well-recognized as satisfying the injury-in-fact standard.  See SCRAP, 412 U.S. at 686-87 (finding that plaintiffs had demonstrated injury-in-fact based on the future harm that would be caused by the railroad rates). 

            Judicial Watch’s injury is actual, particularized, and concrete, as the unfilled vacancies in various U.S. Courts of Appeal remain.  The harm caused by the unconstitutional acts of a minority of obstructionist senators has injured Judicial Watch already and will undoubtedly continue to injure Judicial Watch unless relief is granted.  Contrary to Defendants’ mistaken assertion,[7] the Complaint clearly set forth these specific injuries resulting from the harm to the proper function of the judiciary.  See Compl., ¶¶5-8, 15; ^[8] cf. Michel, 14 F.3d at 626 (“that an injury is widespread, however, does not mean that it cannot form the basis for a case in federal court so long as each person can be said to have suffered a distinct and concrete harm.”).

            The withdrawn Estrada nomination in particular demonstrates the actual injury to Judicial Watch.  Many of Judicial Watch’s cases are brought in this Court and are appealed to the D.C. Circuit.  Because of the unconstitutional filibuster against Estrada, the seat on the D.C. Circuit that Mr. Estrada was to have occupied is vacant, and will now continue to remain vacant, for many months, if not years.  Because of this vacancy, the administration of justice is harmed (fewer arguments heard, fewer opinion written, etc.), injuring Judicial Watch in a concrete way.  Moreover, this harm is almost certain to increase, as the two pending D.C. Circuit nominees (Brown and Kavanaugh) are among those nominees likely to be filibustered.  See p. 5, supra.

B. Judicial Watch’s Injury Is Fairly Traceable To Defendants.

            Defendants allege that Judicial Watch lacks an injury fairly traceable to Senate Rules XXII and V.  Mem. at 29-30.  Because Judicial Watch has clearly alleged that these rules are causing it actual injury that is affecting it in a particular way, Defendants, once again, are incorrect.

Defendants rely on Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998), a prior case challenging Rule XXII, in which a private citizen alleged that, but for filibusters, certain legislation he supported would have become law.  Id. at 25.  This Court correctly found that because both the U.S. House of Representatives and the President represented “independent actors” who could have completely changed the outcome of the legislation, the chain of causation” was too tenuous.  Id. at 29.  Judicial Watch’s challenge to Rules XXII and V is quite different from Page in that only a vote by the Senate is necessary to confirm the filibustered nominees -- no independent third party actors are involved. 

            Defendants cannot seriously deny that the only reason Mr. Estrada was not confirmed, and the reason that Justice Owen and Attorney General Pryor have not yet been confirmed, is because of Senate Rules XXII and V.  Hence, the origin of the Judicial Watch’s injury – a clear minority of the Senate blocking confirmation – is apparent.  As Defendants note, a majority of the Senate voted repeatedly to invoke cloture on the Estrada nomination and the Owen nomination, demonstrating clear support for their confirmation.  Mem. at 7.  It is completely reasonable to conclude that, but for Senate Rules XXII and V, Mr. Estrada and Justice Owen would have been confirmed months ago, as well as Attorney General Pryor more recently.  The chain of causation is reasonable and clear.

C.        Plaintiff’s Injury Is Likely To Be Redressed By A Favorable Decision.

            The Complaint seeks specific relief – that the Court declare Senate Rules XXII and V unconstitutional as applied to judicial nominees and enjoin an obstructionist minority of the Senate from using these rules to block the confirmation of judicial nominees.  Compl. ¶ 9.  With the obvious exception of the now-withdrawn Estrada nomination, the requested relief corrects the source of Judicial Watch’s injury as a result of filibusters of judicial nominees. 

            Judicial Watch routinely litigates in federal courts across the nation, including within the Fifth and Eleventh Circuits – the appeals courts to which Owen and Pryor have been nominated.  See Fitton Aff. ¶¶ 8-14.  By declaring Senate Rules XXII and V unconstitutional as applied to judicial nominations, and enjoining the Senate from further delay in the confirmation proceedings of Owen and Pryor, the Senate would then be required to conform its rules to the Constitution.   The Senate majority supporting Justice Owen and Attorney General Pryor will then be able to vote for confirmation, redressing the harm to the efficient and proper functioning of the judiciary suffered by Judicial Watch.  LA County Bar Ass’n, 979 F.2d at 700-701 (adding additional judges would “ameliorate” long delays in judicial determinations injuring plaintiff).

            Cases relied on by Defendants are unpersuasive and easily distinguishable.  Florida Audubon Society v. Bentsen, 94 F.3d 658, 671 (D.C. Cir. 1996) (chain of causation relied on “congressional prophesy as to economic matters”); Havana Club Holding v. Galleon, 203 F.3d 116, 132 (2^nd Cir. 2000) (involving highly speculative “predictions of Congress’s actions”); United States Ecology, Inc. v. United States Dep’t of the Interior, 231 F.3d 20 (D.C. Cir. 2000) (redressability depended independent third party actors).  Defendants greatly exaggerate the relevance of Ad Hoc Committee v. Commonwealth of Massachusetts, 488 F.2d 1241 (1^st Cir. 1973) (“Ad Hoc Committee”), omitting that the plaintiffs in were not requesting that statutorily mandated judicial positions be filled, but simply an increase in the number of state court judges.  Id. at 1245.  This is a critical difference with this case in which the number of appellate judges for the District of Columbia and the other circuits are mandated by statute.  These numbers were selected by Congress as the numbers necessary to “furnish timely judicial remedies.”  Id. at 1244.  Unlike in Ad Hoc Committee, Judicial Watch’s requested relief is grounded in Article II, § 2 of the Constitution and 28 U.S.C. § 44. 

            Finally, Defendants’ attempt to shrink the legal standard of what is “likely” in regards to redressibility.  The D.C. Circuit has found relief to be redressible even if the relief is not guaranteed or is only partial.  See, e.g., International Ladies’ Garment Workers Union v. Donovan, 722 F.2d 795, 809 (D.C. Cir. 1983) (“slight beneficial indicia will be sufficient to sustain a party’s assertion of standing”).  In Donovan, the Court stated, “the appellants need not negate every conceivable impediment to effective relief no matter how speculative, nor are they required to prove that granting the requested relief is certain to alleviate their injury.”  Id.  (emphasis in original) (citations omitted); see also Natural Resources Def. Council v. Abraham, 223 F.Supp.2d 162, 180 (D.D.C. 2002); Bryant v. Yellent, 447 U.S. 352, 368 (1980).

II. The Speech or Debate Clause Does Not Prevent Judicial Review of This Action.

            Defendants assert that this action is barred by the Speech or Debate Clause of the Constitution, contending that the Senate, its members, and its employees are all immune to suit.^[9]  (Mem. at 33 (Const. Art. I, § 6, cl. 1)).  The Clause, however, protects individual members of Congress; it does not preclude review of the acts of Congress as a whole.  See Powell v. McCormack, 395 U.S. 486, 503 (1969) (“Legislative immunity does not, of course, bar all judicial review of legislative acts.”). 

            As Defendants themselves quote, “the Supreme Court has consistently held that the Speech or Debate Clause provides immunity from suit for ‘anything generally done in a session of the House by one of its members in relation to the business before it.’” Mem. at 34 (citing Doe v. McMillan, 412 U.S. 306, 315 (1973) (quoting Kilbourn v. Thompson, 103 U.S. 168, 203-04 (1880) (internal citation omitted) (emphasis added).  This action plainly does not seek relief against an individual member, but challenges actions of the institution as a whole.  See also Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).  Moreover, the political question doctrine has never been extended to block suits against government itself.  See Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 226 (1997).  Critically, none of the cases cited by Defendants in support of immunity involves the Senate as a whole as a Defendant.

            In Powell v. McCormack, the U.S. Supreme Court unequivocally stated that the Speech or Debate Clause does not prevent review of internal processes of Congress:

Especially it is competent and proper for this court to consider whether [the legislature's] proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.

Powell, 395 U.S. 486, 506 n. 26  (“Powell”) (quoting Kilbourn v. Thompson, 103 U.S. 168, 199 (1881) (allowing action against congressional employees but not addressing whether Speech or Debate Clause would bar suit if no agents participated in the challenged action and no other remedy was available).  The Speech or Debate Clause either has not been addressed or has not been invoked in more recent cases relating to review of the constitutionality of the Senate’s rules.  See Vander Jagt v. O’Neill, 699 F.2d 1166, 1171 (D.C. Cir. 1983) (“Vander Jagt”); Michel, 14 F.3d 623.

            Defendants also assert that the Secretary of the Senate and the Sergeant at Arms are not proper Defendants.  Mem. at 32, 35-36.  The U.S. Supreme Court has consistently held that the Speech or Debate Clause does not cover the conduct of legislative employees like the Secretary of the Senate or the Sergeant at Arms who both are responsible to the Senate as a whole.  See Powell, 395 U.S. at 504 (“[A]lthough an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts.”).  In Powell, the U.S. Supreme Court dismissed several individual congressmen from the suit, but allowed the case to proceed successfully against the Sergeant of Arms of the House.  See also Michel, 14 F.3d at 625 (action against Clerk of the House).

            Legislative employees are immune from suit only where they are alter egos of senators in the deliberative process who act with delegated authority.  See Gravel v. United States, 408 U.S. 606, 616-17 (1972); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507 (1975).  This narrow exception certainly does not apply to the Secretary of the Senate or the Sergeant of Arms.  As Secretary of the Senate, Defendant Reynolds is the “chief legislative officer” of the Senate and “affirms the accuracy of bill text by signing all measures that pass the Senate.”  U.S. Senate: Reference Page:<http://www.senate.gov/reference/glossary_term/

secretary_of_the_senate.htm>; Standing Rules of the Senate 14.5.  In particular, the Secretary of the Senate is responsible for returning confirmed or rejected nominations to the President.  Rule XXXI; Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, S. Doc. No, 101-28 (Alan Frumin ed., rev. ed 1992), at 939 (“Riddick’s Senate Procedure”); see also Attachment 3 to Defs.’ Mem., Senate Consideration of Presidential Nominations: Committee and Floor Procedure at 10-11.  Similarly, the Clerk of the House of Representatives, through his administrative role in the functioning of the House, was an appropriate defendant in Powell and in Michel v. Anderson.^[10]

            The Sergeant of Arms also serves as executive officer of the Senate for enforcement of all Senate Rules.  The Sergeant at Arms of the House of Representatives was deemed a proper defendant in both Powell and Kilbourn v. Thompson, 103 U.S. 168 (1881).  The Secretary and the Sergeant of Arms do not act as the agent of any senator, but are employed by the Senate as a whole.  Riddick’s Senate Procedure, at 955.  Individual senators cannot perform the action of the Secretary or the Sergeant of Arms, and these Defendants cannot perform the functions of a senator.  

            Defendants further suggest that, since the Senate’s rules governing “debate” are at issue here, the Speech or Debate Clause is thus implicated.  Mem. at 34-35.  This is a misreading of the purpose of the Speech or Debate Clause.  The purpose of the clause is to insure that legislators can fulfill their representative duties without fear of judicial reprisal.  Eastland, 421 U.S. at 502.  For example, in the context of a judicial nominee, the Speech or Debate Clause would prevent an action by a rejected nominee for damages against a senator that voted against him or her, and was denied confirmation.  See United States v. Helstocki, 442 U.S. 477, 490 (1979) (“[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed.”) 

            While the Speech or Debate Clause protects legitimate legislative activity, it does not provide the blanket immunity that Defendants suggest.  If an action is outside legitimate activity – such as the unconstitutional procedure in Powell – the Speech or Debate Clause does not apply.  Gravel, 408 U.S. at 620 (affirming that the Court had “not hesitated to sustain the right of private individuals when it found Congress was acting outside its legislative role.”). Id. at 624 n.15.

            Accordingly, the Speech and Debate Clause does not prevent this Court from considering Judicial Watch’s legal challenge to the constitutionality of Senate Rules XXII and V.^[11]

III.       THIS CASE DOES NOT PRESENT AN UNREVIEWABLE “POLITICAL QUESTION”

            Defendants argue that this action presents a non-justiciable political question.  Courts have consistently found, however, that they may hear challenges to Congress’ rulemaking where, as here, other mandates of the Constitution are implicated.  In Baker v. Carr, the U.S. Supreme Court set forth a six-part test for applying the “political question” doctrine while admonishing that the courts “will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.”[12] 369 U.S. 186, 217 (1962).  The Court also made clear that the six-part test should be applied conservatively.  Id. (“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-jusiticiability on the ground of a political question’s presence.”).[13]  In considering political questions, there is no bright line test to determine whether a political question exists, and a case-by-case analysis is necessary.  Baker, 369 U.S. at 217; Regan v. Wald, 468 U.S. 222 (1984) (case-by-case analysis applied).

            Defendants rely on three of the six Baker factors.  Each will be discussed in turn.

A. The Senate’s Power to Determine its Internal Rules of Proceedings Does

Not Insulate the Rule from Judicial Review.

            Although the Constitution grants rulemaking authority to Congress, Art. 1, sec. 5, courts have well-established authority to hear suits – any “political” implications notwithstanding – asserting that congressional rules violate constitutional limitations.  See, e.g., Powell, 395 U.S. at 550 (permitting challenge to House’s refusal to seat elected member); Michel, 14 F.3d at 627 (reviewing a strictly internal House rule); Vander Jagt, 699 F.2d at 1173 (“Art. I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.”); Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 940-943 (1983) (presence of constitutional issues with significant political overtones does not automatically invoke political question doctrine).

            Defendants argue that this action is not justiciable because the Complaint does not identify a provision of the Constitution – i.e,  a time limit on debate – that could be defeated by the rule.  Mem. at 38-40.  This simply is not correct.  As cited in paragraphs 23 and 27 of the Complaint, the constitutional provision at issue is Article II, section 2, which sets forth the procedures for the nomination and confirmation of judicial nominees.  While this section does not explicitly state that confirmation of a nominee occurs with a simple majority of only fifty