House Subcommittee Scrutinizes "Judicial Junkets"
On November 29, the House Judiciary Committee held a hearing
on "judicial junkets" and other judicial ethics
issues. The hearing builds on a July 2000 report by CRC entitled
Nothing for Free: How Private Judicial Seminars are Undermining
Environmental Protections and Breaking the Public's Trust
(available at www.tripsforjudges.org).
Between 1992 and 1998, more than a quarter of the federal
judiciary traveled to resorts at the expense of private interests
with a stake in federal litigation. Many of these privately
funded seminars are designed to advance a specific anti-regulatory
legal agenda. In the words of one seminar sponsor: "[We
are] out to influence minds. . . . If court cases are changed,
then that is something we are proud of as well."
Federal employees in the Executive branch are prohibited
from attending such seminars or accepting other items of value
offered to them because of their official position. It remains
a mystery why this simple idea has not made its way into the
code of conduct for federal judges.
CRC Executive Director Doug Kendall testified at the hearing
that judicial junkets should be banned, more effective penalties
should be imposed to enforce judges' disclosure obligations,
and public access to financial disclosure forms should be
increased. CRC's testimony was well received on both sides
of the aisle, with Chairman Howard Coble (R-NC) emphasizing:
"I would classify [CRC] as a watchdog and that is a compliment.
I never believed that the Federal Judiciary ought to be fed
with a preferential spoon
Legislation has been introduced by Senators Kerry and Feingold
that would move things in the right direction. We'll keep
you posted on future developments.
Are Conservatives Finally Starting to Listen?
Many conservatives are faced with a striking dilemma in the
takings debate. They push for an aggressive application of
the Takings Clause, but at the same time they denounce judicial
activism and insist that the proper role of judges is to interpret
the law, not make it up as they go along.
CRC and others long have argued that the so-called property
rights movement is advocating blatant, improper judicial activism
that contravenes the original understanding of the Fifth Amendment,
as well as principles of federalism and separation of powers.
In a 1998 report called "The Takings Project" (http://www.communityrights.org/takproj.html),
CRC chronicled how Professor Richard Epstein and other conservative
legal theorists have been using the courts to advance an activist
reading of the Takings Clause, which, in Professor Epstein's
words, renders "constitutionally infirm or suspect many
of the heralded reforms and institutions of the twentieth
century: zoning, rent control, workers' compensation laws,
transfer payments [and] progressive taxation." More recently,
in a 2001 report called "Hostile Environment"(http://www.communityrights.org/reportmain.html),
CRC described how activist judges are misusing the Takings
Clause and other constitutional provisions to undermine our
nation's basic environmental protections.
It appears as though some conservatives are finally starting
to listen, and even welcome debate on this issue. The Federalist
Society, an influential group of conservative and libertarian
legal scholars and practitioners, held a panel discussion
on this very question at its November 17 National Lawyers
Convention. The panel, which included CRC's Executive Director
Doug Kendall, addressed the topic: "Property Rights Protection:
Judicial Activism or a Return to First Principles?" (visit
www.communityrights.org to read Doug's remarks). It is unlikely
that any of the attendees experienced a Damascus-road conversion,
but discussion of the issue provides hope that at least some
of these conservative lawyers will see the hypocrisy behind
their simultaneous call for judicial restraint and Takings
D.C. Firm Brings $1 Billion Takings Suit Against Feds
In our August issue of Takings Watch, we reported on the deeply
disturbing nomination to the Court of Federal Claims (CFC)
of Larry Block, a Senate staffer who has been a driving force
behind radical takings bills for many years. Anyone who doubts
the importance of the CFC should think again. Drawing comfort
from the awful decision of the CFC in Tulare Lake v. U.S.
(See May Takings Watch), the Washington, D.C. "property-rights"
law firm of Marzulla & Marzulla recently filed a one billion
dollar regulatory takings lawsuit against the United States
in the CFC, challenging restrictions on irrigation water from
Klamath Lake in Oregon needed to protect coho salmon and other
endangered fish. The suit should fail, both because the water
rights are different than those at issue in Tulare Lake and
because Tulare Lake should be reversed on appeal, but the
$1 billion price tag certainly illustrates the stakes at issue
in the takings debate. Nancie Marzulla is the President of
Defenders of Property Rights, and her husband, Roger, is the
former head of the Justice Department's Environment and Natural
Resources Division, which will now defend against the suit.
The water withdrawal at issue marks the first time since the
Klamath Project irrigation system opened in 1907 that the
U.S. has acted in the interest of commercial fishers and Indian
Tribes, who have suffered for years due to declining salmon
Our hearts go out to the families of the victims of the terrible
tragedy visited upon Washington, New York, and Pennsylvania
on September 11, 2001.
Words cannot express our gratitude to the firefighters, police
officers, and other local officials who have proven once again
that they are our society's true heroes.
Unfortunately, some have sought to use the attack to push
their own special interests. Just days later, Pacific Legal
Foundation ran an opinion piece under the blaring headline
-- "IT'S A DANGEROUS WORLD. DRILL FOR OIL" -- demanding
that the Arctic National Wildlife Refuge and other environmentally
sensitive areas be opened for drilling. Grist Magazine reports
that "Rep. Don Young (R-Alaska) flew right over the cuckoo's
nest and straight into nutville" by suggesting that eco-terrorists
participated in the attacks. The Rev. Jerry Falwell pointed
the finger at the American Civil Liberties Union and People
for the American Way.
It is grossly inappropriate for anyone to exploit this tragedy
or blame other Americans in order to advance a policy agenda.
For now, our response to the attack should reflect our unity
as Americans. In future months, there will be time enough
to return to public policy debates with civility and decorum.
On August 2, President Bush nominated Lawrence J. Block to
be a judge on the U.S. Court of Federal Claims (CFC) for a
term of 15 years. The CFC is critical for takings litigators
because it has exclusive jurisdiction over all monetary claims
against the United States for more than $10,000. It has produced
some of the most troubling rulings in takings jurisprudence,
including Florida Rock, Inc. v. United States, 45 Fed. Cl.
21 (1999). Mr. Block's nomination is deeply disturbing. Since
1994, he has worked on the Senate Judiciary Committee to promote
extreme federal takings legislation, including the radical
Contract-with-America compensation bills that effectively
would have gutted vital protections. It is hard to imagine
a nominee more likely to become an anti-environmental judicial
activist. There's no word yet on when the Judiciary Committee
will hold hearings on the nomination.
CRC and Others Urge Senators to Scrutinize Judicial Nominees
on Takings and Other Activist Doctrines
On July 18, 2001, Community Rights Counsel and others released
a report entitled "Hostile Environment: How Activist
Federal Judges Threaten Our Air, Water, and Land." The
report documents how a group of ideological judges are threatening
core environmental protections through activist rulings.
These judges have used aggressive readings of the Takings
Clause and other discredited legal theories to strike down
a wide range of environmental protections. One judge effectively
found a "constitutional right" under the Takings
Clause to use motorboats in a wilderness area. Another blocked
efforts to clean up toxic waste contamination because it concluded
that the Superfund site was a local real estate matter not
subject to federal control. A federal appeals court dusted
off the "non-delegation" doctrine to strike down
air pollution health standards designed to prevent 15,000
premature deaths annually.
On the day the "Hostile Environment" report was
released, CRC and a dozen other groups sent letters to every
U.S. Senator asking for close scrutiny of judicial nominees
to ensure that they will properly respect the policy choices
made by our elected representatives to protect the environment.
The report is available at www.communityrights.org, and hard
copies are available by e-mailing firstname.lastname@example.org.
One of the hottest topics in our nation's capital is judicial
selection. The Senate Judiciary Committee recently held hearings
to explore the role of ideology in the Senate's consideration
of judicial nominees. Senator Charles Schumer argued for Senate
opposition to any nominee whose views fall outside the mainstream,
but others expressed concern about new ideological litmus
tests. Those of us interested in the takings issue should
keep an eye on this debate. Community Rights Counsel and others
soon will issue a report that documents how improper judicial
activism under the Takings Clause and other constitutional
provisions threatens environmental safeguards and other community
protections. The report urges President Bush to remain true
to his pledge to appoint judges who will interpret the law,
not make it up as they go along according to their own policy
preferences. That way, we stand a better chance that future
judges will apply the narrow text of the Takings Clause in
a way that allows for appropriate community protections.
Senate Shift Is Death Knell for Takings Legislation
Local control over land-use law should not be a partisan
issue. The reality, however, is that Republicans such as Orrin
Hatch (R-UT) have been the lead backers of legislation drafted
by the National Association of Home Builders that would make
it far easier for developers and others to sue municipalities
in federal court. For that reason, James M. Jeffords's (R-VT)
departure from the Republican Party, and the shift in control
of the U.S. Senate to the Democrats, virtually kills any chance
of passage of the NAHB takings bill. The bill, passed by the
House but killed in the Senate in each of the last two Congresses,
was described by the NAHB as a "hammer to the head"
of local officials. Virtually every national group that represents
cities and counties opposes the bill. "This shift in
control should be the death knell for the NAHB takings bill,
at least for the time being," said Tim Dowling, CRC's