UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 

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JUDICIAL WATCH, INC.,                             )

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Plaintiff,                        )

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

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THE UNITED STATES SENATE, et al.,        )          

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Defendants.                  )

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OPPOSITION TO DEFENDANTS’ MOTION TO

HOLD IN ABEYANCE PROCEEDINGS ON

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

Plaintiff, by counsel, respectfully submits this opposition to Defendants’ Motion to Hold in Abeyance Proceedings on Plaintiff’s Motion for Summary Judgment (“Motion” or “Defs.’ Mot.”).  Because of the need for timely review of the issues raised in this case, and the absence of any significant reason for piecemeal review, the Defendants’ Motion should be denied. 

INTRODUCTION

In the absence of any material facts in dispute, Plaintiff properly moved for summary judgment in this case.  See Opp’n to Defs.’ Mot. to Dismiss and Pl.’s Cross-Motion for Summ. J. (filed Oct. 17, 2003) (“Opposition” or “Opp’n”).  Defendants’ apparent discomfort with defending the continuing and increasing filibusters of judicial nominees is not surprising.  The majority leader of the U.S. Senate, the chairman of the Senate Judiciary Committee, and other senators have all stated publicly that, as Plaintiff contends, the judicial nominee filibusters by an obstructionist minority of senators are unconstitutional.  See, e.g., Opp’n at 30-31.  Defendants’ Motion, however, sets forth no significant reason to depart from traditional motion practice and allow Defendants to brief only the issues they currently prefer to address.

The purpose of a summary judgment motion is “to secure the just, speedy and inexpensive determination of every action.”  Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citing F.R.C.P. 1) (other citations omitted).  Because of the real and continuing harms caused by judicial nominee filibusters, both to the proper functioning of the judiciary and to Plaintiff, a summary motion is the appropriate vehicle to expedite the disposition of this case.  The intent of Rule 56 and the goal of a “speedy” disposition of this case are inconsistent with Defendants’ desire to select if and when they respond to motions properly before the Court.  Defendants’ proposed piecemeal briefing schedule could substantially postpone resolution of this case, as it proposes two separate reviews of the issues by the Court.  “Speedy disposition” is, however,

especially important in this case as the Court’s review of Plaintiff’s claims could not be more timely or necessary. 


As recounted almost daily in the news, the unprecedented use of judicial nominee filibusters is expanding.  An obstructionist minority successfully filibustered the nomination of Miguel Estrada until he withdrew in September of this year.  Currently three appeals court nominees – Priscilla Owen, William Pryor, and Charles Pickering – are being filibustered in the Senate.[1]  See Helen Dewar, Judicial Nominee Approved 10-9: Democrats Expected to Filibuster Calif. Justice Brown, Washington Post, November 7, 2003, at A4.  Additional filibusters of appellate court nominees, e.g., California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit and California Judge Carolyn B. Kuhl to the Ninth Circuit – are considered highly likely.  Id.  This escalating and unconstitutional use of the filibuster exacerbates the already substantial harms to the proper functioning of the judiciary and to Plaintiff.  See Opp’n, generally.  Because of this growing crisis, the Court should deny Defendants’ Motion, and proceed with review of the critical issues in this case.

ARGUMENT

I.          Defendants Have Not Established a Sufficient Basis To Proceed In a Piecemeal Way.

Defendants proffer two reasons why the Court lacks authority to require them to brief the merits.  First, Defendants cite to the basic proposition that a court should resolve standing and justiciability issues prior to considering the merits.  Defs.’ Mot. at 4-5 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)).  Defendants then make a bootstrap argument that this principle – relating only to a court’s adjudication – somehow relieves Defendants from having to “brief[] on the merits” of an entirely proper summary judgment motion.  Id. at 5.  Defendants cite no authority for the unusual proposition that they need only brief the merits once other issues are adjudicated.  Defendants’ request is, however, contrary to the general judicial disfavor against piecemeal litigation.  See, e.g., In re Cheney, 334 F.3d 1096, 1102 (D.C. Cir. 2003).

Defendants also assert that the Speech or Debate Clause grants them immunity from briefing the merits.  Without citing any authority, Defendants allege that their Speech or Debate Clause immunity must be decided “before burdening a legislative defendant with defending against a plaintiff’s claims on the merits.”  Defs.’ Mot. at 6 (emphasis added).  This argument is meritless.

Defendants’ conception of the Speech or Debate Clause is far too broad.  The Clause is intended to insure “that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions.”  See Powell v. McCormack, 395 U.S. 486, 505 (1969).  This immunity protects individual members and does not “bar all judicial review of legislative acts.”  Id. at 502.  In this case, the “burden” complained of by Defendants consists of filing a brief in a case challenging the constitutionality of two Senate rules, i.e., the review of a “legislative act.”  Defendants’ brief, of course, involves purely legal questions concerning issues with which Defendants should be quite familiar.[2]  It does not involve significant time, inconvenience or expense for Defendants, such as depositions or document productions.  Nor does it require individual senators being “called into court.”  The U.S. Senate as an institution is a defendant in this case, not individual senators.  And significantly, Defendants have multiple counsel to craft their legal views.

Defendants point to no cases involving the Speech or Debate Clause in which the “burden” of briefing the merits necessitated the piecemeal approach they now propose.  In sharp contrast, the Senate defendants in Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998) – the only other case involving a challenge to the constitutionality of Senate Rules XXII and V – apparently perceived no such burden or inconvenience.  In Page, a pro se plaintiff’s constitutional challenge to Rule XXII as it related to the filibuster of particular legislation – not judicial nominees – was dismissed on a factual basis not present in this case.  The Senate defendants in Page, however, specifically moved to dismiss on the merits of the constitutional issues, among others.  See Attachment 1 (excerpts from Memorandum of Points and Authorities in Support of Senate Defendants’ Motion to Dismiss, at 37-38).

The Speech or Debate Clause is not intended to protect senators from a “burden” such as a legal brief relating to the review of a legislative act – in this case, the constitutionality of two Senate rules.  If the Clause did provide such sweeping immunity, no court could even consider a challenge to a legislative act for fear that it might “burden” a senator.

II.        Proposed Rules Changes in the Senate Do Not Justify Delay in this Case.

 

In response to the public outcry (and most importantly this lawsuit) over these unprecedented filibusters, Defendants now ask to Court sit on it hands while Defendants ostensibly consider changes to their unconstitutional rules that are harming the judiciary.  Specifically, Defendants allege that, because a “resolution to amend the Senate’s cloture rule” is currently on the Senate’s Calendar, they should not be compelled to “brief the merits” of the constitutional issues as this might affect the “deliberation and debate over those rules.”  Defs.’ Mot. at 6.  In other words, Defendants are requesting that the advancement of this case be deferred, perhaps indefinitely, simply because of a pending proposal to amend the Senate’s cloture rules.    


An obvious flaw in this argument is that, even if the Senate does at some point debate a proposed rule change, they are unlikely to debate the legal question of the current rules’ constitutionality.  Defs.’ Mot. at 6.  It is the simple constitutional questions raised in this case that are before this Court for review, not any proposed rule change pending in the Senate.  Second, Defendants fail to specify how “briefing the merits” could exactly “affect” the possible deliberation of a proposed rule change.  If it would have any effect, “briefing the merits” of this case would seem most likely to advance the Senate’s understanding of the legal and constitutional issues at stake.  

 

III.       Piecemeal Litigation Is Not An Efficient Use of Judicial Resources.

 

Defendants contend that briefing the merits could, if the Motion to Dismiss is successful, result in resources of Defendants or the Court being “needlessly wasted.”  Defs.’ Mot. at 7.[3]  Any defendant that has moved to dismiss a case would, of course, prefer to avoid any further activity in the hope that its motion might succeed.  While this delay might be most “efficient” for a defendant, it would be illogical for a court to review a case such as this twice – first on the motion to dismiss, then on the merits.  Indeed, Defendants’ purported desire for “proper and efficient management of this litigation” (Defs.’ Mot. at 3) will be best served if all the issues are fully briefed and presented to the Court for consideration at one time, not in the piecemeal approach Defendants propose.

 

 

CONCLUSION

 

For the these reasons, Defendants’ Motion should be denied, and Defendants should be ordered to file any opposition to Plaintiff’s summary judgment motion forthwith.

 

Respectfully submitted,

 

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

 

November 10, 2003                                                     Attorneys for Plaintiff


[1]           Because the filibusters of William Pryor and Charles Pickering had not begun at the time the Complaint was filed, but are clearly relevant to the claims asserted, Plaintiff, if the Court deems it necessary, is willing to amend the Complaint to include references to these additional filibusters.

[2]           See, e.g., Defs.’ Mot. To Dismiss, at 19 (noting the Hearing on Senate Rule XXII Before the Senate Committee on Rules and Administration, 108th Cong. (June 5, 2003) (149 Cong. Rec. D627 (daily ed. June 9, 2003)); Id. at n. 29 and Hearing Before the Subcommittee on the Constitution of the Senate Judiciary Committee (149 Cong. Rec. D450-51 (daily ed. May 6, 2003)).  The testimony of various senators and academics at these hearings included substantial discussion of whether Rule XXII as it relates to judicial nominations is constitutional.

[3]           Defendants’ professed concern over “judicial resources” is particularly ironic in that they have, through these continuing unprecedented and unconstitutional filibusters, deprived the courts of additional jurists and caused significant harm to the proper functioning of the judiciary.  See Opp’n, generally.