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McCLURE v. CARTER 267 Cite as 513 F.Supp. 265 (1981) Congressman Abner J. Mikva was nomi- nated by President Carter as circuit judge for the District of Columbia Circuit. A number of senators, including Senator McClure, opposed the appointment. In- deed, a number of these senators, again including Senator McClure, voiced their op- position on the Senate floor,’ relying in their arguments on their belief that then- Congressman Mikva was philosophically un- suited to the job, as well as on their view that he was constitutionally ineligible for appointment because of the proscriptions of the Ineligibility Clause. These arguments failed to persuade a sufficient number of their fellow senators, and a majority of the Senate voted to confirm defendant Mikva as judge on September 25, 1979. 125 Cong. Rec. $18363 (daily ed. Sept. 25, 1979). After the Senate voted to confirm Judge Mikva, Senator McClure and others pro- posed to the Senate the jurisdictional stat- ute under which Senator McClure now sues. The Senate attached the proposed statute as a rider to an appropriation bill on Octo- ber 10, 1979, 125 Cong.Rec. $14320, $14325 (daily ed. Oct. 10, 1979), and the House of Representatives agreed to it two days later. Id. H9081 (daily ed. Oct. 12, 1979). 1979, the plaintiff moved to dismiss defendant Kimmitt. The motion was granted. The amended complaint was filed on Novem- ber 6, 1979, once more naming President Carter as a defendant and adding Abner J. Mikva as a defendant. Jurisdiction was again premised on 28 U.S.C. §§ 1331 and 2201 but was additional- ly alleged under section 101(c) of the Act of October 12, 1979, Pub.L. No. 96-86, 93 Stat. 657 (not codified). Plaintiff requested a three- judge court pursuant to the terms of section 101(c). The amended complaint requested the relief described in the text of the opinion. The defendant President answered the amended complaint and requested that the ac- tion be dismissed. Defendant Mikva moved to be dismissed as defendant based on his allega- tion that the court lacked personal jurisdiction over him. On December 13, 1979, the district judge Originally assigned to the case sent to the Hon- orable James R. Browning, Chief Judge of the United States Court of Appeals for the Ninth Circuit, a Notification and Certificate that a three-judge district court should be convened. On December 21, 1979, the President moved for withdrawal of the Notification and Certificate. The motion was denied and on February 4, The jurisdictional statute is unusual in several respects. First, it sets out a single substantive ground for challenging a new judicial appointment—violation of the Ineli- gibility Clause. A challenge to a judicial appointment on any other ground must be brought under some other statute. Second, it limits both in time and by institution the judicial appointments that may be chal- lenged under the statute. It authorizes challenges to only those judicial appoint- ments made during the 96th Congress and only those made to the United States Court of Appeals for the District of Columbia Circuit. A challenge to a judge appointed during any other Congress or to any other court must be brought under some other statute. Perhaps not coincidentally, the only judicial appointment that fits within the statute’s limitations and might be sub- ject to challenge on Ineligibility Clause grounds is that of defendant Mikva. Third, the statute authorizes suits by United States senators and members of the House of Representatives, irrespective of whether the senators voted for or against the ap- pointment or, in the case of members of the House, voted at all. Fourth, the statute 1980, Chief Judge Browning designated a three- judge district court. On February 25, 1980, the two defendants moved for summary judgment, with defendant Mikva expressly reserving his defense that the court lacked personal jurisdiction over him. The plaintiff responded on March 28, 1980, by opposing the defendants’ motions and himself moving for summary judgment. Oral argu- ment was heard on June 26, 1980. The court ruled from the bench that it was properly con- vened as a three-judge court. 5. The constitutional question and the more gen- eral question of Judge Mikva’s qualifications and fitness for judicial office were extensively debated on the floor of the Senate, 125 Cong. Rec. $13342-S13362 (daily ed. Sept. 25, 1979). During the debate, Senator Edward Kennedy introduced two detailed legal memoranda pre- pared by the Justice Department on the consti- tutional question, so that the senators would be fully informed. [d. at S13360-S13362. Sena- tor McClure made a speech attacking Con- gressman Mikva's political and social views and advised his colleagues that he would op- pose the nomination specifically on that basis, urging them to do the same. Id. at S13351- $13353. <> SRO, Fire ttetse ee sos edie