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I. The Importance and Political History of the Court of Federal
Claims
Presidents Reagan and George H. W. Bush stocked the Court
of Federal Claims with former Chief Judge Loren Smith and
other anti-regulatory ideologues in order to use the court
to implement attacks on health, safety and environmental protections.
As Clint Bolick, the Litigation Director for the Institute
for Justice, has stated: "The Claims Court is a place
where the Reagan and Bush Administrations have been able to
place top-notch conservative judges without getting much attention.
That is the result of liberals being somewhat asleep at the
switch and the Administrations' being extremely sophisticated
in their selection and placement of judges."
The Court of Federal Claims (CFC) has national jurisdiction
over claims that federal law "takes" property. Its
rulings can chill or essentially gut a wide range of federal
safeguards by making them too expensive to enforce. Bound
by a "clear error" standard of review on appeal,
the Federal Circuit often must affirm CFC decisions on whether
a taking has occurred. The CFC's jurisdiction also includes
labor, equal pay and affirmative action cases. In recent years,
CFC judges have:
- Held that Clean Water Act denial of permission to mine
limestone in wetlands near the Florida Everglades constituted
a compensable regulatory taking, Florida Rock v. United
States, 35 Fed. Cl. 21 (1999);
- Held unconstitutional military affirmative action programs
and goals in "reverse discrimination" case, Christian
v United States, 46 Fed. Cl. 793 (2000);
- Construed a Civil Service Reform Act amendment to preclude
judicial review of labor claims covered by negotiated grievance
procedures, O'Connor v. United States, 50 Fed. Cl.
285 (2001); and
- Held that an Endangered Species Act decision to require
small reductions in water consumption necessary to ensure
sufficient in-stream flows for endangered salmon was a compensable
taking, Tulare Lake Basin v. United States, 49 Fed.
Cl. 313 (2001).
II. The Troubling Record of Larry Block
Larry Block's record strongly suggests he would join former
Chief Judge Loren Smith at the vanguard of the right's effort
to use the CFC to attack health, safety and environmental
protections. In promoting property rights legislation, Block
repeatedly failed to acknowledge binding Supreme Court takings
precedent and mischaracterized positions in conflict with
that precedent as a mere codification of existing law. These
are among the very issues he would decide as a CFC judge.
As counsel for then-Senate Judiciary Committee Chairman Orrin
Hatch, Block was the primary Senate-staff proponent of radical
takings legislation, including the takings compensation bills
(S. 605, S. 1954) of the 104th Congress. Mr. Block repeatedly
asserted that this legislation would simply codify existing
Supreme Court precedent on what constitutes a taking. For
example, a July 1996 "Dear Colleague" signed by
Senator Hatch but bearing the initials "LB," states
that S. 1954 simply "codifies and clarifies recent Supreme
Court standards as to what constitutes a 'taking' of private
property." This strongly suggests that, as a CRC judge,
Mr. Block would have no qualms adopting a takings standard
similar to the one set in these bills. Indeed, in his Senate
Judiciary questionnaire, Mr. Block again refers to these bills
as only "codifying" takings standards.
In fact, the Supreme Court's takings rulings have always
rejected an approach that would require, as these bills provided,
payments for laws that reduce the value of any affected portion
of property by a certain percentage. As Senators Biden, Kennedy,
Leahy, Simon, Kohl, Feinstein, and Feingold explained, the
S. 605 standard "quite radically departs from over a
century of constitutional thinking in this area, and poses
a direct threat to the property, health and safety interests
of most Americans." These Senators described S. 605's
scope as "breath-taking" because it threatened,
among other things: FDA bans on dangerous drugs; ADA requirements
to make restaurant restrooms wheelchair accessible; FCC limits
on "dial-a-porn" to protect children; EPA pollution
control laws; and Interior Department limits on coal mining.
S. Rep. No. 104-239, at 54, 56-61 (minority views). Democratic
Senators raised similar concerns about the Majority report
on a 105th Congress property rights "ripeness" bill
(H.R. 1534/ S. 2271), asserting that the report "misinterprets
and misrepresents" Supreme Court precedent. S. Rep. No.
105-242 at 34-35 (1998) (minority views).
Ample reason also exists to question whether Mr. Block will
be unduly beholden to corporate claimants before the CFC.
Mr. Block was the subject of an extremely negative front-page
March 31, 1995, New York Times article, "Business
Leaves the Lobby and Sits at Congress's Table." Mr. Block
reportedly let paid industry lobbyists co-lead a staff briefing
on draft "regulatory reform" legislation that would
have undermined the nation's health and environmental protections.
Several attendees reported that Block "appeared to defer
to the three [industry] lawyers about exactly what the bill
meant." "Seldom in the past," the Times concluded,
"have Congressional staff members so openly and publicly
embraced legislative outsiders with extensive interests in
the outcome."
III. The Politics of Nominations to the Court of Federal
Claims
Senator Orrin Hatch (R-Utah) has made the makeup of the CFC
and its appellate court, the Federal Circuit, a top priority.
Two former Hatch staffers - Randall Rader and Sharon Prost
- sit on the twelve-member Federal Circuit. Senator Hatch
obtained speedy confirmation of Sharon Prost despite Prost's
low ABA rating, reflecting her lack of trial experience.
Hatch prevented the Clinton Administration from filling a
large number of CFC vacancies until Clinton agreed to add
Hatch staffer Edward Damich to the CFC and apparently to retain
Loren Smith as Chief Judge until he took Senior status. After
blocking the Clinton Administration from replacing the far
more ideological Loren Smith, Hatch then reportedly lobbied
to strip the Clinton designated Lawrence Baskir of his powers
as Chief Judge in favor of Damich. President Bush's designation
of Damich as Chief Judge was the first time that a sitting
Chief Judge had been displaced. Other pending Bush CFC nominees
have strong Republican and right-wing credentials; they would
join among others, Judge Robert Hodges, Jr., a former aide
to Sen. Strom Thurmond.
Because of the way the terms of the current judges are staggered
(CFC judges are appointed to 15 year terms), President Bush
will fill more vacancies in his first two years in office
(7) than President Clinton filled in eight years (6). If Larry
Block is confirmed, former Hatch staffers would constitute
15% of the total CFC and Federal Circuit
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