On December 11, 1979, the plaintiff filed a memorandum in opposition to defendant Mikva's motion to dismiss. In it he argued that Public Law 96-86 provided the court with both subject matter and personal jurisdiction and made venue proper in the state represented by the plaintiff. On January 18, 1980, plaintiff McClure filed a supplemental memorandum in opposition to Judge Mikva's motion to dismiss in which he contended that Public Law 96-86 authorized "nationwide service of process." He further argued that Congress intended the authority contained in Public Law 96-86 to apply specifically to this lawsuit. In support of this assertion, Senator McClure submitted an affidavit in which he stated that he had drafted the pertinent language in section 101(c) of Public Law 96-86 and that it "was intended specifically to provide that the United States District Court in Idaho would have personal jurisdiction over all parties necessary to the complete resolution of the action, including former Congressman Mikva." [Affidavit, January 11, 1980, at 3] Finally, plaintiff McClure argued that the fact that the suit was filed prior to enactment of Public Law 96-86 was irrelevant, both because an amended complaint had been filed subsequently and because case law held that unless there was a clear indication to the contrary in the statute or legislative history, a change in the law was to be given effect in pending litigation.

On January 28, 1980, defendant Mikva filed a response to Senator McClure's supplemental memorandum in which he argued that the plaintiff could not cite "a single word in the language or legislative history" of Public Law 96-86 to substantiate the Congres sional intent to provide jurisdiction. Judge Mikva further termed Senator McClure's post hoc affidavit "self-serving" and of no value as a matter of law. Quoting the Court of Claims in National School of Aeronautics v. United States, 142 F.Supp. 933, 938 (Ct. Cl., 1956), the defendant noted:

At first blush it might seem that this would be the ideal way to learn the intent of a legislative body, to get it straight from the mouth of a responsible member of the legislature. Second thought leads to the conclusion that the practice would be intolerable. A legislature speaks through statutes, and, in cases where the statutes require interpretation, through committee reports and debates. No member of a legislature, outside the legislature, is empowered to speak with authority for the body. If he may testify voluntarily, other members of his legislative body with different views or different recollections may be summoned to give their differing versions. The debate, which, so far as the law making body is concerned, should have ended by the enactment of the statute, would be transferred to the court, with disturbing possibilities of embarrassment and friction. [Response to Plaintiff's Supplemental Memorandum in Opposition to Motion of Abner J. Mikva to Dismiss, January 28, 1980, at 2]

On February 4, 1980, a three-judge court was designated in accordance with the plaintiff's request pursuant Public Law 96-86. On February 25, 1980, defendants President Carter and Judge Mikva moved for summary judgment, with Judge Mikva expressly

reserving his defense that the court lacked personal jurisdiction over him. In a memorandum accompanying the motion, the defendants contended that Senator McClure had no standing to bring the suit. They noted that the Supreme Court, in Ex Parte Levitt, 302 U.S. 633 (1937), had ruled that a private citizen has no standing to challenge, under the Ineligibility Clause, the appointment of a Member of Congress to the Federal bench because a private citizen cannot establish any direct injury from an unconstitutional appointment. The defendants continued:

Senator McClure's status as a Member of Congress does not clothe him with any greater standing to sue. Senator McClure was able adequately to perform his constitutional role of considering and voting upon the President's nomination of Judge Mikva, as was the Senate as a whole, and he cannot point to any "direct injury" that either he or the Senate, which confirmed Judge Mikva's nomination, suffered as a result of Judge Mikva's nomination and appointment. At best, Senator McClure shares the generalized interest of all citizens in constitutional governance, which is insufficient to confer standing. [Memorandum of Law in Support of Defendant's Motion for Summary Judgment, February 25, 1980, at 2]

The defendants also maintained that although Senator McClure had invoked a section of Public Law 96-86, which purported to grant him standing, "that provision constitutionally cannot expand the jurisdiction of the federal courts to entertain suits, such as this one, which do not meet the 'direct injury' minima imposed by Article III." [Id.]

The defendants further argued that the case presented a nonjusticiable political question in that the Constitution had textually committed exclusive control over Federal judicial appointments to the Executive and Legislative branches. According to the defendants, these branches had fully explored any possible violation of the Ineligibility Clause in this case and had determined that the appointment was proper. "Out of respect for the separation of powers this Court should attribute finality to the action of the political departments on Judge Mikva's nomination and appointment," they argued. [Id. at 3]

Finally, the defendants asserted that on the merits Judge Mikva's appointment did not violate the Ineligibility Clause. They disputed Senator McClure's contention that the President's transmittal to Congress of a plan proposing a 7 percent increase in the salaries of Federal employees (including judges) while Judge Mikva was a Member of the House constituted an "increase in the emoluments" of the office to which he was subsequently appointed and barred the appointment. The defendants also challenged the assertion that even if the salary increase did not occur until after Judge Mikva's appointment, the appointment was retroactively invalidated because the increase became effective during the two-year period to which Judge Mikva was originally elected to serve in the House. The defendants argued:

[T]he Ineligibility Clause applies only to actual, not proposed, salary increases. Furthermore, the Clause was intended to apply, and does apply, only to salary increases which are legislated by Congress at any time during a member's term prior to the member's appointment to federal office. Therefore, Judge Mikva's appointment does not violate the Clause. [Id. at 3-4]

On March 28, 1980, Senator McClure filed an opposition to the defendants' motion for summary judgment and a cross motion for summary judgment. Recognizing that the threshold question in the case was one of standing, the plaintiff asserted that it was conferred on him by Public Law 96-86. It was, said Senator McClure, "beyond doubt that Section 101(c) of Public Law 96-86 eliminated all standing questions save some minimal allegation of injury. [Memorandum in Support of Plaintiff's Motion for Summary Judg. ment, March 28, 1980, at 7] With respect to the injuries to Senator McClure, the memorandum asserted that they were "injuries suffered in his capacity as a member of the United States Senate, injuries which he suffers both derivatively as a member of the Senate and as an individual Senator." [Id. at 9] Since the Senate has a constitutional right to advise and consent to the appointment of federal judges, Senator McClure argued, the body had been injured "since it was unable to advise and consent to the appointment of a person constitutionally eligible for appointment to the office now occupied by Mr. Mikva at the time it considered Mr. Mikva's appointment." [Id. at 10] The Senate was further injured, according to the plaintiff, because an improperly constituted court could not rule in a qualified manner on legislation which the Senate enacted. Finally, the memorandum maintained, Senator McClure had been injured as an individual Senator:

Recognizing that the appointment of Mr. Mikva was unconstitutional, he voted against Mr. Mikva to prevent an unconstitutional action from taking place. Thus, plaintiff, as a direct result of the defendant President's unconstitutional act was forced to cast his vote against Mr. Mikva on this basis alone, thus nullifying his constitutional right to advise and consent to the appointment of a nominee based upon the nominee's qualifications to perform judicial functions. [Id. at 14 (footnote omitted)]

With respect to the political question arguments raised by the defendants, the memorandum contended that "Congress ha[d] resolved the political question issue in this case through the authorizing language in Public Law 96-86" and the "President-defendant concurred in this action by signing this joint resolution into law." [Id. at 15] This, according to the plaintiff, empowered the judicial branch to decide the issues in the case.

On the merits, Senator McClure continued to argue that Judge Mikva was constitutionally ineligible for his office because that office received an emolument prior to his appointment; that Judge Mikva was prohibited from being appointed to his office until the end of his congressional term; and that Federal salary laws created a present entitlement to annual increases for Federal judges.

On April 28, 1980, defendants Carter and Mikva filed an opposition to the plaintiff's cross motion for summary judgment in which they restated their arguments that Senator McClure lacked standing and that the action was barred by the political question doctrine.

With respect to the standing question, the defendants disputed Senator McClure's contention that the Senate had been "injured" because the body could not make its own determination on the constitutionality of Judge Mikva's appointment after President Carter nominated him:

Senator McClure's restrictive view of the Senate's role in the appointment process is not supported by reason or experience. Under the Appointments Clause, Article II, § 2, cl. 2, the Senate must give its "Advice and Consent" on the nomination of federal judges. As Professor Black has pointed out, "[h]e who advises, gives or withholds his advice on the basis of all the relevant considerations bearing on decision." Black, Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, 659 (1970). There is certainly nothing in the Constitution which prohibits the Senate from making a determination on the constitutionality of a prospective appointment to federal office, and no court or other authority has ever suggested that the Senate is incapable of making such a determination. See generally, J. Harris, The Advice and Consent of the Senate (1953). . .

Of course, the most relevant example of the Senate's consideration of the constitutionality of a federal appointment comes from the debate on Judge Mikva's nomination. None other than Senator McClure himself challenged the constitutionality of Judge Mikva's appointment on the floor of the Senate, and urged his colleagues to vote against confirmation on this and other grounds (see 125 Cong. Rec. S13351-S13353 (daily ed. September 25, 1979), attached to Memorandum of Law in Support of Defendants' Motion for Summary Judgment). Senator Helms, who also argued against confirmation on the constitutional issue, said that the issue "should have been referred to the Subcommittee on the Constitution, and then we would have a better basis on which to cast our votes in connection with this nomination" (125 Cong. Rec. S13351). Senator Kennedy, addressing the constitutional issue, assured his colleagues that "it was most certainly considered and weighed by the Judiciary Committee" which "agreed, in reporting this nomination, that there was no constitutional bar to Congressman Mikva's nomination" (Id., at S13360). Senator Kennedy inserted in the Congressional Record memoranda from the Justice Department which dealt with the issue, in order that the senators would be better informed about it when they vote (Id., at S13360-S13362). These words and actions prove that the Senate was not disabled from making its own determination on the constitutionality of Judge Mikva's appointment after the Presi

dent nominated him. [Opposition to Plaintiff's Cross-
Motion for Summary Judgment, April 28, 1980, at 3-5]

The defendants also rejected Senator McClure's alternative contention that he was personally injured because he was forced to vote on the constitutional issue alone and could not advise and consent to the nomination based on Judge Mikva's qualifications. According to the defendants, Senator McClure had in fact indicated during the floor debate on the nomination that he opposed Judge Mikva because of his social and political views, rather than because of the constitutional question alone.

With respect to the political question issue, the defendants maintained that Senator McClure was incorrect in asserting that Public Law 96-86 had resolved the matter. According to the defendants, Article III of the Constitution precluded Congress from conferring jurisdiction of the Federal courts to resolve political questions:

[T]he Supreme Court has taught that "Congress may not confer jurisdiction on Art. III federal courts to resolve 'political questions' *** because suits of this character are inconsistent with the judicial function under Art. III." Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). See Luther v. Borden, 48 U.S. (7 How.) 1 (1849). If, as we submit, the Constitution textually has committed to the political departments the determination of whether an individual is eligible to be nominated and appointed to, and to continue to serve in, a federal judicial post, Congress has no power to confer jurisdiction upon the courts to review that determination. Put another way, Article III would void any legislation, such as Public Law 96-86, which purports to convert a nonjusticiable action into a justiciable one by congressional fiat. Thus, even if Congress enacted Section 101(c) of Public Law 96-86 for the purpose of permitting a court challenge to Judge Mikva's appointment, as Senator McClure suggests (Plaintiff's Memorandum, p. 15), its desires cannot circumvent Article III. [Id. at 6]

On the merits, the defendants reiterated their argument that the "emoluments" of the judicial office to which Judge Mikva was ap pointed were not actually increased until after his appointmen and therefore it did not violate the Ineligibility Clause.

On June 16, 1980, Senator McClure filed a response to the de fendants' opposition to his motion for summary judgment. In pa ticular, the plaintiff took issue with the defendants' arguments o standing and derivative injury:

Plaintiff has not claimed that individual Senators were disabled from making their own judgment regarding Mr. Mikva's constitutional eligibility; presumably, in fact, each senator did make a determination of Mr. Mikva's constitutional eligibility as well as a determination of Mr. Mikva's fitness for office. These determinations, however, are separate and distinct, the fitness for office determination being a political decision textually committed to the Senate and the President and the determination of constitutional eligi