March 28, 2003
Re: Opposition to Nomination of Victor J. Wolski to the
U.S. Court of Federal Claims
On behalf of our organizations and their members, we strongly
urge you to exercise independent judgment pursuant to the
Senate's constitutional advise and consent responsibility
and decline to confirm the nomination of Victor J. Wolski
to the United States Court of Federal Claims (CFC). Mr.
Wolski is a 40-year old lawyer who has spent the largest
portion of his legal career bringing challenges to environmental
and other protections on behalf of the industry-funded Pacific
Legal Foundation. Mr. Wolski is a self-described ideologue
on the very property rights issues that he would decide
as a CFC judge. He told the National Journal in 1999
that "every single job I've taken since college has
been ideologically oriented, trying to further my principles,"
which he describes as a "libertarian" belief in
"property rights" and "limited government."
In light of these statements, his record, and his testimony,
it is clear that Mr. Wolski has not demonstrated the appropriate
temperament and credibility to be a fair and neutral federal
judge on this important court.
The Importance of the Court of Federal Claims
The CFC is one of the most important courts in the country
for environmental and other federal safeguards. The court
was created in 1982 and given exclusive jurisdiction over
most "takings" claims against environmental and
other protections. Recent rulings by the CFC illustrate
the court's ability to sidestep binding Supreme Court precedent
and to make taxpayers pay corporations millions of dollars
simply for following basic health, safety and environmental
protections. For example, in August 2002, in two separate
rulings, the CFC awarded over $10 million to a corporate
chicken farmer for complying with protections against salmonella
poisoning, and $40 million to a coal company simply for
having to bear the burden of seeking a "compatibility"
ruling before mining coal in the Daniel Boone National Forest.
Another initial ruling by the CFC found a physical taking
of water that was left in a stream to protect endangered
Sadly, ideology already appears to play too large a role
in the rulings of the CFC. David Coursen, a former senior
counsel for the Environmental Protection Agency, has written
that "in the CFC the identity of the judge seems to
be an unusually good indicator of the likely outcome of
the cases." Coursen noted that "fourteen wetlands
decisions, from a wide range of judges, reject takings claims.
Only four decisions find takings, and three of these decisions
are from a single judge [former Chief Judge, now Senior
Judge, Loren Smith], who, in turn, has never decided an
environmental takings case in favor of the government."
David F. Coursen, The Takings Jurisprudence of the Court
of Federal Claims and the Federal Circuit, 29 Envtl.
L. 821, 829-830 (1999).
The Disturbing Ideology of Victor J. Wolski
Against this background, the undersigned groups find Mr.
Wolski's nomination enormously disturbing. Mr. Wolski has
devoted his entire career to furthering his libertarian
belief in "property rights" and "limited
government." As a CFC judge, Mr. Wolski would have
considerable authority to write his principles into law,
if he so chooses. But that is not the proper role of a federal
Mr. Wolski spent the largest portion (1992 to 1997) of
his relatively brief legal career to the Pacific Legal Foundation,
an extreme group that brings sweeping challenges to fundamental
protections for the environment, workers, and victims of
discrimination. See www.pacificlegal.org.
While Mr. Wolski worked at Pacific Legal Foundation (PLF),
a Jan. 30, 1995, article in The Nation quoted PLF
Legal Director Jim Burling as stating that the organization's
goal was to "get rid of the regulatory state established
by F.D.R.'s New Deal." The arguments Mr. Wolski made
in his legal work on behalf of the Pacific Legal Foundation
indicate that his extreme ideology threatens health, safety
and environmental protections across the board. For example,
in Suitum v. Tahoe Regional Planning Agency, Mr.
Wolski argued that a much-heralded regional plan established
to save Lake Tahoe from pollution worked a categorical "taking"
of property even though affected landowners were permitted
to sell their development rights, often for far more than
their lot's purchase price. See Petition for Writ
of Certiorari, Suitum v. Tahoe Reg'l Planning Agency, 520
U.S. 725 (1987) (No. 96-243). Had the Supreme Court accepted
Mr. Wolski's argument, the plan to save Lake Tahoe would
have failed, as would similar plans to preserve unique places
such as New York's Pine Barrens, Florida's Everglades and
New Jersey's Pinelands.
Mr. Wolski has argued that a "special" form of
"due process" is required whenever the government
denies any form of zoning permit or variance. See
Brief Amicus Curiae of Pacific Legal Foundation at 13, Rivkin
v. Dover, cert. denied, 519 U.S. 911 (1996) (No.
95-1980) ("a special process is 'due' when property
rights are at stake."). Apparently this reflects his
argument that city permit application restrictions on "the
right to develop or use real property" affect a "fundamental"
constitutional right. See Petition for Writ of Certiorari
at 9, Clark v. Hermosa, cert. denied, 520 U.S. 1167
(1997) (No. 96-1278) ("When a city imposes restrictions
on the right to develop or use real property, usually in
the context of a permit application process, the city is
affecting a fundamental right."). Mr. Wolski's arguments
would turn the federal courts into zoning boards of appeals,
something even conservative judges and justices have been
loath to do. See Sylvia Dev. Corp. v. Calvert County,
48 F.3d 810, 828 (4th Cir. 1995) (Niemeyer, J.) ("Resolving
the routine land-use disputes that inevitably and constantly
arise among developers, local residents, and municipal officials
is simply not the business of the federal courts.");
River Park, Inc. v. City of Highland Park, 23 F.3d 164,
165 (7th Cir. 1994) (Easterbrook, J.) ("Federal Courts
are not boards of zoning appeals.").
Finally, in Cargill, Inc. v. United States, Mr.
Wolski argued that it was "far beyond" Congress's
power under the Commerce Clause to protect ponds that served
as habitat for 55 different species of migratory birds.
Brief Amicus Curiae of Pacific Legal Foundation at 5, Cargill,
Inc. v. United States, cert. denied, 516 U.S. 955
(1995) (No 95-73). Mr. Wolski praised the Supreme Court's
5-4 ruling in United States v. Lopez, for beginning
to "rein in the abuses of the commerce power justification
for acts of Congress." Id. at 6. Mr. Wolski's
intemperate brief repeatedly referred to the more than twelve
acres of seasonal ponds at issue as "puddles,"
and belittled the possibility that there might be a national
interest in protecting migratory birds. See, e.g., id.
at 6-7 ("[j]urisdiction over puddles * * * was justified
by the Ninth Circuit on the basis that birds might frolic
in these puddles"); id. at 7 ("Will one
fewer puddle for the birds to bathe in have some impact
on the market for these birds?"). If Mr. Wolski's views
on the Commerce Clause were ever adopted by the Supreme
Court, innumerable federal protections would be rendered
Mr. Wolski's Testimony Raised Additional Problems With
Mr. Wolski's testimony at his March 12, 2003, Judiciary
Committee hearing raised additional grounds for rejecting
his nomination. When Mr. Wolski was asked about his
Cargill brief, he testified that it was merely "a brief
on behalf of clients," that was "no reflection
of his personal views." This testimony, however, ignores
the fact that the brief he wrote and signed in Cargill
was an amicus brief and the "client" was his employer,
the Pacific Legal Foundation. Mr. Wolski chose to work for
the Pacific Legal Foundation from 1992 to 1997, and he told
National Journal in 1999 that he did so to further
his libertarian principles, which he specified included
his belief in property rights and limited government. In
these circumstances, it is simply not credible for Mr. Wolski
to claim that the views expressed in Cargill are
no reflection of his personal views.
Similarly untenable are Mr. Wolski's responses to questions
about his statements indicating his commitment to furthering
his ideological principles. The full text of the relevant
portions of a profile of Mr. Wolski by National Journal
on June 19, 1999, reveals him to be a self-described
ideologue on the very property rights issues that he would
decide as a CFC judge:
''Every single job I've taken since college has been ideologically
oriented, trying to further my principles,'' said Wolski,
who grew up in New Brunswick, N.J., and received his undergraduate
degree from the University of Pennsylvania. ''I'm essentially
a libertarian. I believe in limited government, individual
liberty, and property rights.''
Mr. Wolski did not seriously dispute the accuracy of the
quotes in this article, but asserted, nonetheless, that
all he meant was that he was committed to taking jobs in
the non-profit and the public sector. This is simply not
a plausible interpretation of the words quoted by National
Equally unworthy of credit is his assertion in testimony
that he "certainly meant no disrespect" when he
referred to members of Congress as "bums" in a
letter to the editor published in the San Francisco Chronicle
in 1992. The following language from Mr. Wolski's published
letter is irreconcilable with this testimony:
Admittedly, it is ironic that in this of all years - when
people are thoroughly disgusted with a rogue Congress that
raises taxes, raises spending, raises its pay and is so
used to the unconstrained use of other people's money that
its members don't bother to balance their own checkbooks
- we might see the presidential election decided in the
House. However, there are two silver linings: Many of the
current bums will be gone, and the importance of the individual
states in our system of government will be underscored.
It is this latter point that proponents of stronger federal
government like [current Hardball host Chris] Matthews,
who view the states themselves as anachronisms, really fear.
Are Any New CFC Judges Needed?
Before filling any of the vacant judicial seats on the
CFC, the Senate has a responsibility to consider the shocking
results of an empirical analysis of the court's workload
and jurisdiction recently published by George Washington
Law Professor Steven Schooner. (Professor Schooner's study-The
Future: Scrutinizing The Empirical Case For the Court of
Federal Claims-will be published in an upcoming edition
of the George Washington Law Review; it is available now
online at http://papers.ssrn.com).
Professor Schooner, a director of GW's Government Contracts
Law program, demonstrates that "a federal district
court judgeship bears more than eight cases for each case
allocated to a CFC judgeship." Schooner also notes
that even this remarkable statistic exaggerates the CFC's
workload, because it does not take into account the court's
"inefficient" life tenure system that has accelerated
the path of CFC judges to senior status and has resulted
in the CFC's current 1-to-1 ratio of active judges to senior
judges. By way of comparison, the ratio of active judges
to senior judges in the federal district courts is 2.3 to
1. Factoring the CFC's "abundance of senior judge resources"
into the equation, an active CFC judge has approximately
one-tenth the caseload of the average federal district judge.
Each year, federal judges cost taxpayers an average of
more than $1 million per judge. If confirmed, Mr. Wolski,
who is 40 years old, would likely spend many decades as
a member of the CFC, costing taxpayers tens of millions
of dollars. Before adding new judges to the CFC--particularly
young new judges like Mr. Wolski--Congress has a responsibility
to assess Professor Schooner's indictment of the CFC's life
tenure system and his compelling evidence indicating that
no additional judges are needed on the CFC. We strongly
believe that such an assessment must be done before any
new judges are confirmed to the Court of Federal Claims.
We strongly urge you to exercise independent judgment pursuant
to the Senate's constitutional advise and consent responsibility
and to decline to confirm Mr. Wolski to this critical position
in light of the major environmental, credibility, demeanor
and other concerns raised by his statements, record and
S. Elizabeth Birnbaum
Director of Government Affairs
Community Rights Counsel
Vice President and Chief Counsel
Defenders of Wildlife
Endangered Species Coalition
Friends of the Earth
Mineral Policy Center
Philip E. Clapp
National Environmental Trust
Director of Advocacy
Natural Resources Defense Council
Director, Environmental Law Program
Southern Utah Wilderness Alliance