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A project tracking federal judicial nominations and courts.


Damien M. Schiff

United States Court of Federal Claims
Nominated May 8, 2017

[VIDEO] Senate Judiciary, Nominations hearing, June 14, 2017

Judiciary Committee 11-9 vote (July 13, 2017)

Post-hearing written answers to Senators Schiff Responses to Questions for the Record

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President Trump nominated Damien Schiff and Stephen S. Schwartz 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.”

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.

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