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A project tracking federal judicial nominations and courts.


Stephen S. Schwartz

United States Court of Federal Claims
Nominated June 7, 2017

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President Trump nominated Stephen Schwartz and Damien Schiff to the U.S. Court of Federal Claims which has nationwide jurisdiction over claims that federal laws, regulations and other actions result in Fifth Amendment takings of private property that require payments of just compensation. Extreme rulings in these cases can threaten virtually every existing and proposed law and regulation. For example, as explained in my law review article:

     "Chicago Law Professor Richard A. Epstein declared, in his 1985 book Takings, that his "position invalidates much of the twentieth century legislation" including: civil rights legislation, the National Labor Relations Act, "The New Deal," Social Security, minimum wages, and "virtually all public transfer and welfare programs."

    Former Solicitor General Charles Fried (1985- 89) described the approach of the Reagan Administration's Department of Justice as:

"[a] specific, aggressive, and, it seemed to me, quite radical project, to use the Takings Clause of the Fifth Amendment as a severe brake upon federal and state regulation of business and property. The grand plan was to make government pay compensation as for a taking of property every time its regulations impinged too severely on a property right .... [T]here would be, to say the least, much less regulation."

     Government compensation for actual takings of property is required by the Fifth Amendment. What Fried termed the 'radical' agenda of the Reagan Justice Department, however, would have required compensation or forced the repeal of regulations, not only for actual takings, but in thousands of other instances 'as for a taking.' ...

    As Professor John Martinez has pointed out: "By enlarging the scope of private property, takings statutes are thus an attempt to indirectly amend every legislative enactment which may affect private property - and it is hard to imagine a statute which does not.""

Takings Bills Threaten Private Property, People, and the Environment, Glenn P. Sugameli, 8 Fordham Envtl. L.J. 521, 529, 561, 580 (1997).

The Court of Federal Claims seats to which President Trump nominated Schiff and Stephen Schwartz are only vacant because Sen. Tom Cotton (R-Ark.) blocked five Obama nominees the Judiciary Committee had approved by unanimous voice votes in 2014 and again in 2015- see discussion and links at Armando Omar Bonilla, United States Court of Federal Claims, Returned to President January 3, 2017.

Sen. Cotton did not object to any of the nominees but argued that the caseload did not justify filling any of the five empty seats. The Roll Call newspaper reported that Sen. Cotton’s actions “line[d] up well with the interests of one of his old law firms” whose “employees gave significant political contributions to Cotton.”

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