Judicial Watch, Inc. v. U.S. Senate

• Decision Date: 23 December 2005
• Docket Number: No. 04-5422.,04-5422.
• Citation: 432 F.3d 359
• Parties: JUDICIAL WATCH, INC., Appellant v. UNITED STATES SENATE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 359

432 F.3d 359

JUDICIAL WATCH, INC., Appellant v. UNITED STATES SENATE, et al., Appellees.

No. 04-5422.

United States Court of Appeals, District of Columbia Circuit.

Argued October 28, 2005.

Decided December 23, 2005.

Appeal from the United States District Court for the District of Columbia (No. 03cv01066).

Paul J. Orfanedes argued the cause for appellant. With him on the briefs were James F. Peterson, Michael J. Hurley, and Meredith L. Cavallo.

Thomas E. Caballero, Assistant Senate Legal Counsel, argued the cause for appellees. With him on the brief were Patricia Mack Bryan, Senate Legal Counsel, Morgan J. Frankel, Deputy Senate Legal Counsel, and Grant R. Vinik, Assistant Senate Legal Counsel.

Before: SENTELLE and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Concurring Opinion filed by Senior Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Senior Circuit Judge.

Senate Rule XXII provides that three fifths of all senators duly chosen and sworn can bring debate on an issue to a close. For amendments of the Senate rules themselves, however, cloture under Rule XXII requires a vote of two thirds of all senators present and voting. Rule V provides that the Senate's rules continue from one Congress to the next unless changed as provided in the Senate rules. The three-fifths rule applies to judicial nominations.

Judicial Watch, Inc., a non-profit organization that advocates "transparency, integrity and accountability in government, politics, and the law," filed suit in district court against the Senate, its Secretary, and its Sergeant at Arms, challenging Rules V and XXII and seeking declaratory and injunctive relief. It claims that the rules in effect require supermajority support for confirmation of judicial nominees, in violation of Article II, Section 2, Clause 2, of the Constitution, which it reads as providing for confirmation by a simple majority.

On a motion under Rule 12(b), the district court dismissed Judicial Watch's suit for want of Article III standing. Judicial Watch, Inc. v. U.S. Senate, 340 F.Supp.2d 26, 38 (D.D.C.2004). We affirm, though on somewhat different reasoning.

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To show constitutional standing, Judicial Watch must meet the familiar requirements of injury-in-fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Judicial Watch points out that in pursuing its agenda it makes much use of the judicial process, having litigated over one hundred suits in state and federal court since its inception in 1994. It alleges that the challenged Senate rules have slowed the confirmation process and thus the filling of judicial vacancies, thereby injuring it by increasing delay in its lawsuits and adversely affecting its interest in "the efficient and proper function of the federal court system." Judicial Watch, 340 F.Supp.2d at 32. As delay appears to be the only specific impairment of efficient function alleged, we will focus on it.

The district court found that Judicial Watch failed to show any of the three elements of Article III standing. Id. at 31-38. In rejecting Judicial Watch's claim of injury-in-fact it relied heavily on language in Lujan describing the requisite injury as "invasion of a legally protected interest." Id. at 31-32 (emphasis added) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). The court concluded that Judicial Watch's interest in speed of litigation either was not protected by the provisions that Judicial Watch cited (namely, 28 U.S.C. § 44 (providing for circuit judge appointments), the First Amendment, and the Due Process Clause of the Fifth Amendment), or at any rate was not protected by those provisions in such a way that the delays Judicial Watch claimed amounted to invasion of any "right" that they afforded Judicial Watch. 340 F.Supp.2d at 35. We, instead, assume arguendo that Judicial Watch has met the injury-in-fact requirement but find that its allegations fail to support an inference that the rules challenged here caused the alleged injury. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

Our review of the grant of the motion to dismiss for want of jurisdiction is de novo. See Information Handling Services, Inc. v. Defense Automated Printing Services, 338 F.3d 1024, 1029 (D.C.Cir.2003). In assessing plaintiff's allegation that Rules XXII and V caused delays in plaintiff's lawsuits, we assume the correctness of all plaintiff's allegations of specific facts, such as the duration of specific appeals filed by plaintiff (which in any event are matters of public record). We do not, however, automatically accept its conclusory allegations that the challenged rules were a material cause for those durations. We assess plaintiff's specific allegations for their "logical adequacy," Haase v. Sessions, 835 F.2d 902, 908 (D.C.Cir.1987), and for "quantum of proof," id., i.e., whether the specific alleged facts support inferences claimed by plaintiff, including an inference of causation, United Transp. Union v. ICC, 891 F.2d 908, 913 n. 9 (D.C.Cir.1989) (analyzing Simon).

The first question is what rule would prevail in the absence of Rule XXII. As Senate practice from 1806 until the initiation of formal cloture rules in 1917 was evidently one of unlimited debate, invalidation of Rule XXII might well restore that practice, causing (on Judicial Watch's theory) yet more delay. This of course edges over into problems of redressability. But Judicial Watch's complaint asked for an injunction to stop defendants from "continuing to prevent votes" on the nominations of Miguel Estrada and Priscilla Owen (a request mooted by Miguel Estrada's withdrawal and Judge Owen's confirmation), Complaint at 9, Joint Appendix ("J.A.") 17; given that request, it seems fair to read the next request in the complaint, asking for "any and all other relief the Court deems just and proper," id., as encompassing a request for judicial substitution of a simple majority rule for cloture on judicial nominations. But while Judicial Watch may have asked for such a judicial rewrite, our providing one would obviously raise the most acute problems, given the Senate's independence in determining the rules of its proceedings and the novelty of judicial interference with such rules. See Page v. Shelby, 995 F.Supp. 23, 29 (D.D.C.1998), aff'd, 172 F.3d 920 (D.C.Cir.1998) (table). Rather than embark on those issues, we will assume arguendo that a court could somehow overcome them. But even with the heroic assumption that Judicial Watch might secure an order requiring a simple majority for cloture, we find that its causation allegations fail to show two links needed to support an inference that the three-fifths cloture rule caused slower case processing than would have prevailed under a majority cloture rule.

First, we note that Judicial Watch offers no systematic evidence of confirmation delay due to Rule XXII. Granted, it faces considerable difficulty marshalling evidence, as the only changes in rules from 1917 to the present have been first to make non-unanimous cloture possible, then to reduce the requisite cloture majority (from two-thirds to three-fifths) and to change the applicable baseline (from senators present and voting to all senators). In any event, even if recent times have manifested an increase in confirmation times (a proposition that in fact is highly sensitive to the definition of the time period in which nominations may have been susceptible to the filibuster and to the classification of nominees ultimately not confirmed), plaintiff has alleged no facts supporting an inference of a material role for Rules V and XXII. Given the great variation in confirmation times in the nearly 200 years during which at least as a formal matter the Senate might be argued to have applied a supermajority cloture rule, it is not enough, in trying to support an inference that Rule XXII has played a material role, to rely simply on intuition.

Second, even if Rule XXII has materially slowed the confirmation process, plaintiff's allegations do almost nothing to show that such a slowing has materially increased case disposition time. One relevant variable that may be a main driver of disposition times, and relatively unresponsive to small changes in overall judgepower, is pre-argument processing (including procedural and dispositive motions). In fact, in the D.C. Circuit, the venue which Judicial Watch cites for evidence of delay, the median time from filing a notice of appeal to filing the last brief is four months longer than the systemwide median, while the median time from notice of appeal to final disposition is only 0.1 months (merely three days) longer than the median time for all circuits. See Administrative Office of the U.S. Courts, U.S. Courts of Appeals Statistical Tables (Mar.2003), available at http://jnet.ao.dcn/img/assets/4647/appeal303.pdf (Table B4). Moreover, judges may respond to judicial vacancies by working harder.

To show a link between delays in confirmations and in case dispositions, Judicial Watch again offers at best anecdotal data. It points in particular to two of its appeals filed in and decided by this court during the filibuster of Miguel Estrada in 2002, Oral Arg. Tape at 1:58; Complaint at 5, J.A. 13 (citing Browning v. Clinton, 292 F.3d 235 (D.C.Cir.2002); Meng v. Schwartz, 48 Fed.Appx. 1 (D.C.Cir.2002)), which took roughly 16-17 months from filing to disposition,¹ and four cases unresolved when the complaint was filed and lasting roughly 18, 8, 6, and 5 months up to that moment.² By way of supposed contrast, Judicial Watch's complaint asserts that the median filing-to-disposition time for all federal appeals in 2002 was 10.7 months.

The evidence proves little. First,...