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. 

That Senator Cotton thus far has gotten away with his blockade is no doubt due to a combination of two factors—the near-total, partisan shutdown of all judicial confirmations by Senator Majority Leader Mitch McConnell (R-KY), and the fact that the Court of Federal Claims is not exactly a household name.  Indeed, it might just be the most important court that most Americans have never heard of.  

The CFC, created by Congress in 1982, is the successor to the United States Court of Claims, which was established in 1855 as the court where Americans who have suffered financial injury at the hands of the federal government could sue the government for money damages.  Given the right of Americans to haul their own government into this unique court to seek compensation for financial injury, the CFC has often been referred to as “the People’s Court.”  Today, the court hears cases involving, among things, claims for refunds of federal taxes, patent and copyright infringement claims against the federal government, alleged breaches of contract by the United States, claims involving military and civilian pay allowances, and bid-protest suits brought by disappointed bidders on government contracts.

To handle these important and complex cases, the court, as noted above, is supposed to have 16 active judges.  But five seats on the court are vacant.  President Obama has named five well-qualified, non-controversial nominees to fill those vacancies.  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.  Not one.  And that’s because Senator Cotton has blocked those votes on the Senate floor, claiming that the court’s workload does not justify filling the vacancies.  

Significantly, the Chief Judge of the CFC disagrees, and has taken the unusual step of writing directly to the Senate’s leadership to urge that the Senate fill the five vacancies “at the earliest opportunity,” expressly noting the court’s “urgent needs.”  As Chief Judge Campbell-Smith has explained,

“Despite the court’s shortage of judicial officers, our caseload continues unabated.  The statutory requirements dictating deadlines for certain types of cases unique to our court, including government contract disputes – some of which involve national defense and national security – remain in effect.  The dollar amounts in dispute in our currently pending cases, which are often an indication of the complexity of the underlying issues, are in the billions of dollars.”

Similarly, in a May 1, 2015 letter to Majority Leader McConnell, five past presidents of the United States Court of Federal Claims Bar Association, the association of lawyers who practice regularly before the court, urged the Senate to confirm the five pending nominees, stating that “The absence of a full complement of Judges is placing a significant strain on the sitting judges and the court is facing a potential case management crisis.”  In a follow-up letter to Senator McConnell on July 22, 2015, CFC Bar Association past president Lewis S. Wiener directly addressed and refuted Senator Cotton’s workload claims, specifically noting that the court’s filings had “increased by 13.4% in FY2014 over FY2007.”  

So far, these voices have not persuaded Senator Cotton, who seems to think he knows the staffing needs of a court better than its Chief Judge and those actively practicing before it.  Chutzpah?  More likely, this is another effort by a conservative Senator to preserve a politically lopsided court.

Right now, of the 11 active judges on the CFC, eight were appointed by Republican Presidents, and three by Democrats.  The confirmation of President Obama’s nominees would make it 8-8, restoring balance to the very skewed court. 

We’ve been down this road before.  Senator Cotton’s claims that the CFC’s workload does not justify filing the vacancies is the same claim made a couple of years ago by Senate conservatives in an ultimately unsuccessful effort to keep President Obama from filling three vacancies on the D.C. Circuit.  Indeed, as Judiciary Committee Ranking Member Patrick Leahy (D-VT) has put it, Senator Cotton “appears to be dusting off the Republican playbook from the last Congress to try to do to the U.S. Court of Federal Claims what he could not do to the D.C. Circuit.”

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, and has awarded millions of taxpayer dollars to corporations simply for following basic health, safety and environmental protections.  Given the CFC’s jurisdiction, 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.

The partisan gamesmanship should stop.  If Senator Cotton has an objection to any of the five nominees to the CFC, he can vote against their confirmation.  But each of those nominees deserves a yes or no vote, and deserves it promptly.

Photo: Gage Skidmore