Editorials and Opinion
A Confederacy of Dunces (Shelia Kennedy [IN professor blog], 09/05/17)
"The one area in which he has sent numerous nominees to be confirmed is the Judiciary, and those nominees are terrifying. Two examples:
John Kenneth Bush, Trump’s nominee for the Sixth Circuit ... Damien Schiff is Trump’s nominee for the US Court of Federal Claims. He has called Supreme Court justice Anthony Kennedy a “judicial prostitute” ... When “elitism” is defined as expertise, and people who know what they are doing are for that reason disqualified, ideology and incompetence fill the void."
Will Trump’s Enduring Legacy Be a Right-Wing Judiciary? The president is moving at a rapid clip to put ideological allies on the bench. (Moyers & Company, 08/25/17)
Susannah Jacob: Donald Trump chose Michael Brennan to fill an open seat on the 7th Circuit Court of Appeals. In doing so, he broke with a 38-year-old Wisconsin tradition.
For decades, when the 7th Circuit seat meant for a Wisconsin judge opened up, a bipartisan state commission voted on a jointly agreed-upon list of judicial nominees for the president to consider.... Trump went ahead and selected Brennan, a former Milwaukee County judge who is a close ally of Wisconsin’s Republican governor, Scott Walker. In 2011, while serving on a committee to help Walker select state-level judges, Brennan co-authored an op-ed in the Milwaukee Journal Sentinel supporting Republican efforts to block Obama’s nominee to the 7th Circuit Court — a nominee who would have sat in the very seat for which Trump has nominated Brennan.... Republican senators support Trump’s nominees, despite spoken hesitation.
For instance, during his nomination hearings, Sen. John Kennedy (R-LA) found 52-year-old judicial nominee John Bush problematic. “I’ve read your blog. I’m not impressed,” Kennedy told Bush. ... Schiff would oversee environmental and agency lawsuits. In the past, he’s accused the Environmental Protection Agency of treating Americans “as if they were just slaves” and recommended selling Yosemite National Park to the Walt Disney Company because they’d “do a damn better job, I think.”
He also moonlights as a blogger. In one post, he called Associate Justice Anthony Kennedy a “judicial prostitute”
Senators Against White Supremacy: Time to Match Rhetoric to Votes on Nominees (Medium, 08/22/17)
Kyle Barry, NAACP LDF Policy Counsel: So far, however, the Republican-controlled Senate has served as a rubber stamp for Trump’s nominees, propelling into power judges and executive officials selected precisely because they will advance Trump’s broader anti-equality and anti-civil rights agenda. ... every Republican Senator (save for the absent John McCain) voted to confirm John Bush to the Sixth Circuit Court of Appeals. Bush’s record includes a surfeit of sexist, homophobic, and racist comments, and support for discriminatory policies. ... There is a nominee to the Court of Federal Claims, Damien Schiff, who once wrote that he would have “objected to an anti-racism curriculum being taught in 1950s Arkansas” because at that time the propriety of racism remained debatable. He also wrote that Supreme Court decisions upholding affirmative action repeated the same mistakes of Plessy v. Ferguson, which established the “separate but equal” doctrine, and Korematsu v. United States, which upheld the internment of Japanese Americans. Two other nominees, Thomas Farr to the Eastern District of North Carolina and Stephen Schwartz, another Court of Federal Claims nominee, defended North Carolina’s package of voting restrictions that the Fourth Circuit found “target[s] African Americans with almost surgical precision.”
Trump’s Anti-Environment Judicial Nominees Could Lead to Polluted Air and Water (Center for American Progress, 07/27/17)
Billy Corriher: The president has recently nominated two young lawyers—both under 40 years old—with a history of working for groups tied to the Koch brothers and other polluters to 15-year terms on the U.S. Court of Federal Claims.
The first nominee, Damien Schiff, is a lawyer with the Pacific Legal Foundation (PLF), a group that often sues the federal government when the government seeks to enforce environmental laws. Like another recently confirmed judicial nominee, Schiff has a history of writing blog posts that denigrate LGBT people and even Supreme Court justices. A few months ago, he wrote that Earth Day is “a threat to individual liberty and property rights.” Schiff once said that the EPA treats American citizens like “slaves” during an interview on CNN.... The nominations of Schwartz and Schiff are in line with the Trump administration’s deregulatory agenda.... If they are confirmed, Schwartz and Schiff could make it easier for oil companies and other corporations to sue the EPA or other government agencies for compensation when regulations cost them money.
Trump reshapes the lower federal courts with little progressive scrutiny (The Hill, 06/23/17)
Jonathan R. Nash: While the Court of Federal Claims, and nominees to it, generally attract little attention, Trump’s two nominees to the court thus far suggest an effort to increase the likely success of Takings claims against the government and thus to augment the protection of private property rights against government infringement.
Last month, the president nominated Damien Schiff, who has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm that has argued in favor of a broad understanding of compensable Takings.
The president’s new nominee to the court, Stephen Schwartz, has similar experience.
Before entering private practice, Mr. Schwartz served as counsel to Cause of Action, a public interest law firm that professes its “advoca[cy] for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”
Little Rock native gets rough ride at judicial confirmation hearing UPDATE (Arkansas Times, 06/14/17)
Max Brantley: John Bush, the Little Rock-born Louisville lawyer and conservative blogger nominated for a federal judgeship by Donald Trump, had a rough time at the Senate Judiciary Committee hearing on his nomination. From Think Progress on the hearing today: ... "Bush revealed that he either does not believe that all divisive decisions are tragic, or that he has a very poor command of American history.
“Wouldn’t you characterize Brown v. Board of Education,” Sen. Dick Durbin (D-IL) asked Bush, as “a case that divided our country?” In response, Bush first pled ignorance, then gave an historically-inaccurate answer.
“I wasn’t alive at the time of Brown,” Bush said. “But I don’t think it did.”" Whew. This from a nominal legal scholar from LITTLE ROCK, where the division was so evident three years after Brown that troops were called in! ... Lots more provided by Glenn Sugameli, senior attorney for Judging the Environment.... Lot of links to troubling background on Bush here at Judging the Environment. In another Arkansas angle, the Alliance [for Justice] notes another problem nominee by Trump, Damien Schiff to the court of claims. He's another homophobe based on public record who called Justice Anthony Kennedy a judicial "prostitute." The local angle is that Sen. Tom Cotton was a one-man wrecking crew for all five appointments Obama tried to make to the overworked court of claims. Cotton contended no slots needed to be filled. Now that there's a homophobic nut case on offer, will Cotton still block presidential appointments to the court? Much more on Schiff here. [link to Judging the Environment]
Federal Courts Won’t Save Us if We Don’t Save the Federal Courts: We can’t depend on the Trump administration or on Congress to protect civil rights. So we need to save the courts (Medium, 06/13/17)
The Leadership Conference: As The Leadership Conference has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with dispensing justice .... That’s why we fought so hard to block Trump’s Supreme Court nominee, Neil Gorsuch, and why we’re fighting to prevent other extreme Trump rubberstamps from being confirmed to the federal bench. John K. Bush, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit, and Damien M. Schiff, nominated to serve on the U.S. Court of Federal Claims, are both appearing before the Senate Judiciary Committee tomorrow — and neither of them would be the independent and impartial federal judges America needs.
Bush and Schiff have a history of blogging on topics that make them unfit to serve on the federal bench .... There’s one disturbing example after another in AFJ’s reports and in our letters on these and many other issues, like environmental rights, property rights, judicial activism, police misconduct, and voter fraud.
‘TRIPLE THREAT’ Trump’s Terrible Judicial Trifecta: Passing on alt-right conspiracies. Railing about ‘teaching gayness.’ Arguing for leniency to sentence minors to death. And these three nominees are expected to be confirmed easily. (Daily Beast, 06/07/17)
Eleanor Clift: if there were a 60-vote threshold, they wouldn’t stand a prayer’s chance of getting a lifetime appointment to the Sixth or Eleventh Circuit, or in the case of 38-year-old Damien Schiff, a 15-year appointment to the Court of Federal Claims, positioning him for the Ninth Circuit.... Louisville lawyer Bush, slated for the Sixth Circuit, is the most problematic. ... Schiff called Kennedy “a judicial prostitute” for “selling his vote as it were to four other Justices ... Schiff has called Earth Day “a threat to individual liberty and property rights,” and blames environmental regulations for contributing to California’s drought. He favors selling off public lands and once suggested Yosemite be turned over to Disney.... Alabama’s Kevin Newsom ... is positioned for a lifetime appointment on the Eleventh Circuit is what rankles Democrats. The vacancy occurred in 2013, and in February 2016 Obama nominated U.S. District Court Judge Abdul Kallon from Birmingham to fill the seat. He would have been the first African-American from Alabama to sit on the Eleventh Circuit. He never got a hearing. Sen. Jeff Sessions, who is now attorney general, never returned the blue slip that would have facilitated Kallon’s confirmation.
Damien M. Schiff – Nominee to the U.S. Court of Federal Claims (Vetting Room, 06/02/17)
Harsh Voruganti: Schiff is only thirteen years out of law school, and has spent virtually his entire legal career in one position: working for the libertarian Pacific Legal Foundation.... Schiff’s confirmation to the CFC could nonetheless open up a lifetime appointment. Judge Alex Kozinski of the Ninth Circuit and former Judge Randall Rader of the Federal Circuit both served as CFC judges before their appellate appointments. At 38, Schiff is young enough to be elevated in a few years to an appellate court, and potentially even further.
As such, it is incumbent on the Senate Judiciary Committee to carefully probe Schiff’s writings, and ensure that his strongly held political views would not affect his rulings as a judge. It also falls upon Schiff to clarify some of the more aggressive opinions he has taken, particularly his reference to Justice Kennedy as a “judicial prostitute.” After all, every litigant, regardless of whether they are before the Supreme Court, or the CFC, deserves an impartial and qualified judge.
Flashback: Lower Court Nominee Once Called Justice Kennedy A ‘Judicial Prostitute’ (Daily Caller, 05/28/17)
Kevin Daley: President Donald Trump’s first nominee to the U.S. Court of Federal Claims, Damien Schiff, once described Justice Anthony Kennedy as a “judicial prostitute” in a blog post .... Politico reported his inflammatory remarks came in response to a 2007 SCOTUSblog post .... Schiff’s nomination could adversely affect the administration’s quiet efforts to coax Kennedy into retirement.
President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute” (Justice Watch, 05/26/17)
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.
First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge.
Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.
Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law. Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.
Will He or Won’t He? How Justice Anthony Kennedy’s retirement decision became a battle over the judiciary and the Trump presidency. (Slate.com, 05/26/17)
Dahlia Lithwick: Court watchers across the political spectrum seem to agree that Trump’s reckless disregard for the judicial branch and separation of powers will make it harder for the justice to leave his storied judicial legacy in the hands of a President Trump. This is, after all, the same president who just named Damien Schiff of the Pacific Legal Foundation to serve on the U.S. Court of Federal Claims—Schiff being the man who posted on his personal blog that “Justice Kennedy is (and please excuse the language) a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.”*
How Trump plans to remake the lower courts (The Hill, 05/24/17)
Opinion by Prof. Jonathan R. Nash: Justice Joan Larsen (currently a Justice on the Michigan Supreme Court) for a seat on the United States Court of Appeals for the Sixth Circuit and Justice David Stras (currently a Justice on the Minnesota Supreme Court) for a seat on the United States Court of Appeals for the Eighth Circuit — were on the list of 21 names from which, during the presidential campaign, Mr. Trump promised to select his nominee to replace deceased Supreme Court Justice Antonin Scalia ... suggests continued influence of the Federalist Society and the Heritage Foundation.... President Trump has nominated Damien Schiff to a seat on the United States Court of Federal Claims. [The court's docket includes] claims for “Takings” of private property.
The nomination of Judge Schiff is especially interesting, since Schiff has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm.
In that capacity, Schiff has argued in favor of a broad understanding of compensable Takings. Thus, his nomination to the Court of Federal Claims may signal the President’s desire to augment the protection of private property rights against government infringement.
Testimony on the Nomination of Judge Neil Gorsuch to the Supreme Court (American Constitution Society Blog, 03/23/17)
Prof. William P. Marshall: In fact, in the leading case on the subject, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Justice Scalia found the right against regulatory takings to be located not in text or history but in so-called “constitutional culture.” Id. at 1028.... n the Eleventh Amendment cases restricting citizens’ ability to sue states, originalists relied on history and not text. At the same time, in Fourteenth Amendment cases striking downstate affirmative action programs, they relied on text and not history. And in Shelby County v. Holder, 133 S. Ct. 2612 (2013), originalists had no reliable basis in either text or history when they struck down one of the most important pieces of legislation ever passed by the United States Congress -- § 5 of the Voting Rights. ... Originalism, then, is a doctrine of false promises. It suggests a fealty to the Framers’ design when it is actually antithetical to the Framers’ vision. It purports to offer a jurisprudence with fixed and predictable results when its application is nebulous and variable. It claims value neutrality when it has been erratically deployed in order to achieve specific results.
Tom Cotton continues two-year blockade of judge confirmations (Arkansas Times, 09/14/16)
Max Brantley: "Sen. Tom Cotton continues to mount a one-man blockade to confirmation of judges to the depleted federal court of claims. Thanks as ever to Glenn Sugameli of Judging the Environment, a judicial nominations project, for the update. Tuesday, Cotton again blocked votes on five nominees twice approved unanimously by the Republican-controlled Senate Judiciary Committee to a court with six vacancies. Cotton said he's not convinced the court needs more hands. Despite the two years of deliberation on these nominations and support from his own party, Cotton characterizes the process as a "rubber stamp" of presidential nominations. With the Senate needing unanimous consent to move a vote, Cotton alone blocked it. Democratic Sen. Patrick Leahy said in a statement: '... Senate Republicans' obstruction playbook leaves no court behind. It spans from the very top, with their complete refusal to give a hearing and a vote to Chief Judge Merrick Garland, to the article III circuit and district courts, to the article I Court of Federal Claims, where citizens go to sue their government. This blockade of all five CFC nominees makes no sense, especially because not a single Republican on the Senate Judiciary Committee raised a concern about these nominees either during the committee hearings on these nominations 2 years ago or during the Committee debate 2 years ago or last year.' You could say Tom Cotton does not play well with others."
This sand is your sand. Keep N.C. beaches public [Editorial] (Charlotte Observer [NC] , 09/05/16)
"We expect the N.C. Supreme Court will affirm the Appeals Court ruling, which noted that N.C. law has long declared that the “full width and breadth” of beaches are subject to “public trust rights.”
It’s possible, however, that the Supreme Court will put its thumb on the scale for property rights. We’d feel better if the legislature stepped in and made clearer what has long been assumed: The sand you walked on this summer is everyone’s to enjoy."
Editorial: NC beaches belong to all of us. Let's keep it that way (Capitol Broadcasting Company [NC], 09/05/16)
"It is long-held in North Carolina that the 301 miles of coastal beaches belong to all of us. The flat sand beach, from the water’s edge to the shifting dunes, are to be enjoyed by all of us. It is important this right of the people stays that way.
That principle is being challenged in the courts. A couple from New Jersey that owns beachfront property in Emerald Isle, contends that they own – and control – all the sand down to the “mean high water mark.”... Three state Court of Appeals judges agreed as well.... North Carolina’s beaches are a treasure all citizens own and can enjoy. 3
It is precisely that principle the North Carolina Supreme Court should affirm."
NC beaches belong to all [Editorial] (News & Observer [NC], 08/29/16)
"North Carolina’s tradition should hold, as the state Court of Appeals ruled. That should have been the end of it, but now the case is headed to the N.C. Supreme Court.... Credit Judge Linda McGee of the appeals court with a clear, common-sense opinion. She wrote in part that the “public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become part of the public consciousness. Native North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”
That is 100 percent correct, and the fears of leaders of coastal communities about the consequences of a court ruling that limits beach access are well-founded."
Who owns NC beaches? Case puts public access in jeopardy (News & Observer [NC], 08/26/16)
Op-Ed by ROLF BLIZZARD and CAROL LOHR: Your right to enjoy North Carolina’s public beaches is in jeopardy because of a major case before the N.C. Supreme Court – the outcome of which could dramatically affect our state’s tourism economy.... State statutes enacted before the Nieses bought their vacation home note that public beach access is “part of the common heritage of the people of this state” and that “the public (has) made frequent, uninterrupted, and unobstructed use of the full width and breadth of the ocean beaches of this state from time immemorial,” regardless of who owns the underlying or adjoining land.... Gov. Pat McCrory, Attorney General Roy Cooper, the N.C. Association of County Commissioners, the N.C. Coastal Resources Commission, the N.C. Coastal Federation, the N.C. Wildlife Federation and dozens of coastal communities have urged the Supreme Court to uphold the public’s right to reach and use our beaches. They cite the case’s potential harm to public welfare, public safety, law enforcement, wildlife, fisheries, beach nourishment and local government services.
The private nonprofit N.C. Travel and Tourism Coalition, of which we are members, and the North Carolina Vacation Rental Managers Association filed a legal brief in the case pointing out its serious threat to North Carolina’s $22 billion tourism economy"
Our Opinion: Keep the beach open [Editorial] (Greensboro News & Record [NC], 08/24/16)
"When the town enacted an ordinance barring beachfront property owners from putting any beach equipment “within an area 20 feet seaward of the base of the frontal dunes,” Gregory and Diane Nies sued. They called the action a “taking” for which they deserved compensation. ... The ruling relies more on common law, tradition and previous court decisions than it does on the statutes of North Carolina. But upsetting all that could jeopardize the open quality of our beaches.... Is there a difference at the coast where one’s “front yard” is the beach? We think so, but if the Supreme Court doesn’t, the legislature should write a new law to guarantee public access to the sand."
Editorial, Aug. 12: Don't cut into public's access to beach: A case before the N.C. Supreme Court could make some parts of the beach off-limits (Wilmington Star-News [NC], 08/13/16)
"Under the state’s longstanding “public trust” doctrine, however, the public has had the right to access and use the dry-sand beach, even if technically someone’s property line extends onto it. Think of it as an easement.
A couple at Emerald Isle is suing the town, ... complaining that public vehicles are driving along their dry-sand strip. The creation of this “driving lane,” they argue, constitutes an illegal taking of property without just compensation. ... Towns and counties up and down the coast are arguing that police, lifeguards, other emergency responders and trash trucks need access to this beach area. Driving down on the tidal areas would endanger more marine life.... The N.C. Supreme Court now has the case.... the beach -- all the sandy part, high tide or not -- ought to be open to the public for reasonable, non-destructive use.... If the Supreme Court justices don’t get this point right, our legislators should be ready to act."
Leahy again blasts Tom Cotton for waylaying court appointment (Arkansas Times, 12/18/15)
Max Brantley: "The question is this: Why REALLY is U.S. Sen. Tom Cotton standing in the way of a nominee to the federal court of claims (a place where Lockheed just objected to losing a big defense contract bid that would have put people to work in Arkansas)? Other Republicans support the nominees. There's a demonstrated shortage of judges and unwillingness by retired judges to fill in. But the freshman senator's solo opposition is blocking appointments approved by a Republican-controlled committee. Holding out until a hoped-for Republican administration in 14 months? That's no way to run a government. From a statement last night by Democratic Sen. Patrick Leahy: [Quote]"
GOP freeze on judgeship includes single-handed Tom Cotton blockade (Arkansas Times, 12/09/15)
Max Brantley: "U.S. Sen. Patrick Leahy has again ripped Senate Republicans for its failure to act, promptly or otherwise, on judicial nominations.
His news release citing several failures to advance nominees with bipartisan support including from homestate Republicans also again cites U.S. Sen. Tom Cotton's singular roadblock to filling multiple openings on the federal court of claims. This is a little-known but important court. In fact, Auditor Andrea Lea is likely heading there with her attempt to convert unclaimed mature U.S. savings bonds to state of Arkansas ownership....Tell it to extremist Tom Cotton. He's unwilling to get the people's real and pressing business done in the courts.... Glenn Sugameli, who heads the Judging the Environment judicial nominations project, called the Leahy statement to my attention. It has experienced court delay because of a shortage of claims judges.
His organization is not alone in protesting Cotton's obstructionism.
And Sen. Harry Reid notes the disproportionate impact, including by Cotton's blockade, on Latino judicial nominees. And you can read more here particularly on Cotton's blockade of Armando Bonilla.
Note that the nominations being blocked, included Cotton's one-man blockade, are of nominees who won unanimous committee approval from a Republican-controlled Senate."
HOW ONE SENATOR FROM ARKANSAS IS OBSTRUCTING “THE PEOPLE’S COURT” (Text & History, 07/27/15)
By Judith E. Schaeffer: "Senator Tom Cotton (R), the junior Senator from Arkansas, is obstructing the proper functioning of the United States Court of Federal Claims (“CFC”), holding up consideration of President Obama’s nominees to fill five judicial vacancies on a court that is supposed to have 16 active judges. According to Senator Cotton, the CFC does not need those five judges, a claim disputed by the Chief Judge of that very court, who is certainly in a better position to know. ... All of the nominees were approved in February without opposition by the Senate Judiciary Committee, and sent on to the Senate floor for confirmation votes. Nonetheless, and despite the fact that nearly one-third of the judicial seats on the CFC are vacant, not one of these nominees has received a yes or no confirmation vote. ... Like the D.C. Circuit, the Court of Federal Claims is vitally important to those who care about protecting the environment and preserving environmental safeguards. The CFC has exclusive jurisdiction over most “takings” claims against environmental and other protections, .... conservatives have worked hard to put young, ideological nominees on the court, like Victor Wolski, who 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 described as a “libertarian” belief in “property rights” and “limited government.” It’s no wonder that a conservative Senator is now trying to preserve the status quo on that court."
Tom Cotton: There he goes again, playing loose with the facts (Arkansas Times, 07/23/15)
Max Brantley: "I've been noting Cotton's obstruction of confirmation to five vacancies on the federal court of claims, obstruction that seems to play into the interests of a former employer and campaign contributor.
Cotton has claimed data shows the court has enough judges. Now comes CQ Roll Call with a lawyer disputing Cotton's information. Lewis Weiner, former leader of the court of claims bar association, says Cotton is using the wrong statistics.... Cotton exercised a single senator's power to block unanimous consent to the nominations, though they have twice been approved by the Judiciary Committee, once when led by Republicans."
Sen. Tom Cotton blocking Obama federal court appointees hostile to his old pro-business law firm (Raw Story, 07/21/15)
TOM BOGGIONI: "Despite pleas from the chief judge of the Court of Federal Claims to fill five vacancies on the court that oversees claims against the government, Arkansas Sen. Tom Cotton (R) is blocking confirmation votes for five Obama nominees, ensuring the court remains solidly pro-business.... spite pleas from the chief judge of the Court of Federal Claims to fill five vacancies on the court that oversees claims against the government, Arkansas Sen. Tom Cotton (R) is blocking confirmation votes for five Obama nominees, ensuring the court remains solidly pro-business."
Tom Cotton blocks judges that might be hostile to contributors at his old law firm (Daily Kos, 07/21/15)
Joan McCarter: "Freshman Sen. Tom Cotton (R-AR) has learned quickly how to maximize obstruction, ... to his latest achievement, blocking five federal judges to the Court of Federal Claims. Perhaps not at all coincidentally, that court looms large for Cotton's old law firm—which includes some of his big financial contributors—because of the kinds of cases it hears, "disputes about government contracts and tax refund suits." ... In blocking the five new appointments, who have now been waiting 15 months for a vote, Cotton said that the court's workload just didn't justify having all sixteen seats filled. The chief judge of the court, Patricia E. Campbell-Smith, disagrees. ... because "current judges face unrelenting deadlines for cases unique to that court—some of which involve national defense and national security—and the cases are complex and time-consuming.""
Editorial Assembly bill on ivory sales is worth approving (Los Angeles Times, 06/07/15)
"[L]egal ivory trade can serve as a cover for illegal trade. AB 96, introduced by Assembly Speaker Toni Atkins (D-San Diego), would tighten the rules by barring the sale of almost all ivory in California. (The bill would also ban the importation and sale of endangered rhinoceros horn.) It passed the Assembly last week with bipartisan support. The Senate should pass it too, and the governor should sign it into law.... It's not likely that the courts will see this law as a violation of the Takings Clause under the 5th Amendment of the Constitution. When California outlawed shark fins, a group sued, arguing that the government had taken away the value of traders' shark fins. The courts ruled otherwise, stating that the government was not in violation of the Constitution when it imposed a complete ban on a product determined to be harmful to the species."
Rand Paul's Brand of Judicial Activism (Bloomberg News, 01/26/15)
Cass R. Sunstein: "For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law....Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.” Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty.
There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people."
EDITORIAL Our Opinion: Endangered; Proposal before Congress would change the way we protect species (Tallahassee Democrat [FL] , 12/29/13)
"Now, there is a serious threat to the Endangered Species Act. The Endangered Species Management Self-Determination Act (Senate Bill 1731), introduced by Sen. Rand Paul, R-Ky., would hand more of the decision-making on endangered species to the states. Each new listing of an endangered species would require a joint resolution of Congress as well as approval of the governors in states affected. In addition, the U.S. Fish and Wildlife Service would have to pay landowners more than the market value of their land if its value was reduced by an endangered-species listing. The Fish and Wildlife service would be barred from managing or monitoring species that occur only within one state.
Translation: Economics would gain the upper hand over species protection. Here in Florida, home to so many visible and popular endangered species, the people understand the value of the current law.
A survey by University of Florida Institute of Food and Agricultural Sciences found that 66 percent of those responding felt the Endangered Species Act should be strengthened, and 78 percent agreed or strongly agreed that “the use and development of land should be restricted to protect endangered species.”"