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Redefining Federalism

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The Court of Federal Claims and the Nomination of Lawrence Block:
An Overview of the Concerns
By: Earthjustice & Community Rights Counsel

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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