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Claims Court A Quiet Victim Of Senate Nomination Deadlock
By Daniel Wilson
Law360, Nashville (July 18, 2016, 4:54 PM ET) -- Although U.S. Supreme Court nominee Judge Merrick
Garland has received the most attention amid a Senate logjam over confirming federal judicial
nominees, experts say the plight of other pending nominees, including a quintet nominated for the U.S.
Court of Federal Claims, also deserves broader attention.
The Court of Federal Claims, also known as “the People’s Court,” hears federal contract disputes and bid
protests, vaccine injury claims and other monetary claims against the federal government.
“This is where the people of the United States go to seek redress against their government, and this
delay is adversely affecting — I won’t say crippling — but adversely affecting the court’s ability to do its
job,” said Sutherland Asbill & Brennan LLP partner and former Federal Claims Bar Association president
Lewis Wiener.
Senators left Capitol Hill on Thursday for their long summer recess, and won’t return until after Labor
Day. As is traditional, they confirmed a group of presidential nominees before leaving on their break.
However, they did not confirm a single judge, amid an ongoing fight over judicial nominees that has now
stretched for several years.
Although the lion’s share of attention has gone to the unprecedented refusal of Senate Republicans to
consider Judge Garland’s nomination, holdups for other judicial nominees have been just as egregious,
experts say, including a lack of votes for the five pending nominees for the Court of Federal Claims.
The nominees — federal prosecutors Armando O. Bonilla and Patricia M. McCarthy, renominated Judge
Nancy B. Firestone, Fish & Richardson PC principal Thomas L. Halkowski and Civilian Board of Contract
Appeals Vice Chair Jeri K. Somers — have each been waiting more than two years for a final vote, all
nominated in either April or May 2014.
Each has twice been unanimously approved by the Senate Judiciary Committee, and the group as a
whole would add valuable diversity to the federal bench, with Bonilla for instance set to become the
first Hispanic judge in the history of the court, experts say.
But despite pleas from both leaders in the court’s bar and from Chief Judge Patricia Campbell-Smith
urging that they be confirmed, their nominations have stalled on the Senate floor, leaving the court with
an “extraordinary” mass vacancy that is likely both the longest and largest in its history, University of
Richmond School of Law professor Carl Tobias says.
The most prominent stumbling block for the group has been the opposition of Sen. Tom Cotton, RArk., who blocked a Democratic request in July 2015 to confirm the quintet by unanimous consent,
putting a hold on the nominees. He argued that a declining caseload did not warrant the addition of new
judges, nor the salaries that would come along with them.
“It ... makes no sense to spend more taxpayer dollars on judges that the court simply does not need,”
Cotton said on the Senate floor at the time.
But Cotton’s caseload argument is misleading, experts say. For instance, it is true that the court’s
pending caseload dropped heavily between 2009 and 2014, as thousands of long-pending cases, alleging
injuries from the use of preservative thimerosal in vaccines, were resolved, according to an August 2015
report from the nonpartisan Congressional Research Service.
But those thimerosal cases were largely resolved by dedicated special masters, not judges, and new
cases have steadily increased between 2009 and 2014, including bid protest cases, which are arguably
the most complex cases the court handles, the CRS claimed.
And in 2013 the terms of five judges — Court of Federal Claims judges serve for 15 years at a time,
unlike most federal judges, who are appointed for life — expired, with three taking senior status and
two retiring outright, leading to the current vacancies.
In a 2015 letter to Congress, Judge Campbell-Smith said that senior judges have helped to alleviate the
court’s caseload, but noted they are largely only able to handle partial caseloads. Senior judges can also
choose to retire at any time.
The chief judge also pointed out the complexity of cases that the court handles, such as contractual
disputes and cases that may involve thousands of individual claims, sometimes with billions of dollars at
stake.
Further exacerbating the issue, an additional vacancy has since opened, with the retirement of Judge
Lawrence J. Block in January. No nominee has yet been put forward for that position, leaving the court
with six vacancies out of a total of 16 active judgeships.
“The ability of the court to decide cases is being inexcusably harmed by Sen. Cotton’s failure to do his
job,” said Glenn Sugameli, founder of Judging the Environment and a senior attorney at Defenders of
Wildlife. “There’s an advise and consent duty.”
A prominent example of the problems the court faces without a full bench came in Judge Mary Ellen
Coster Williams’ comments at an October scheduling conference, in a case filed by the Jicarilla Apache
Nation, according to Sugameli.
While noting she could possibly hand trial off to another judge, Judge Williams said that she would
otherwise have to move a trial originally scheduled for November back to July, her earliest available
opening, with “a lot” of emergency cases to resolve first.
“There’s real, specific evidence that this is hurting the ability to resolve cases,” Sugameli said.
Wiener rebutted Sen. Cotton’s claims about saving money on judge’s salaries, noting that the longer
cases take to be resolved, the more money the government is forced to pay in interest if it loses.
But the senator has ignored repeated requests from members of the bar to discuss the issue, Wiener
says, for instance responding to a March letter with a form letter that mistakenly referred to the dispute
over Judge Garland’s nomination for the Supreme Court.
In line with that, arguments have been made that the senator’s claimed reasons for blocking the
nominees may be disingenuous, with his motivation instead perhaps revolving around maintaining the
current tilt of the court, mostly made up of Republican nominees.
A more pointed accusation is that Cotton’s efforts could be an attempt to aid his former law firm,
Cooper & Kirk PLLC, which dedicates a significant part of its practice to claims against the government,
experts say, perhaps by helping it to have a better chance of getting its cases in front of Judge Victor J.
Wolski, a former attorney at the firm who is now a judge on the court.
If either reason is true, then Cotton is likely barking up the wrong tree, as although politics may play a
heavy role in getting judges onto the court, it has little apparent impact on their decisions, according to
Wiener.
“I’ve litigated cases in the court both as a government attorney and as a private attorney,” he said. “I’ve
been on both the defendant and the plaintiff’s side. I have never seen politics play into the court’s
decision, and it doesn’t matter which judge I’ve been before — and I’ve been before most of them.
Politics does not play a part in the decisionmaking as far as I have seen it.”
A representative for Cotton’s office didn’t respond to a request for comment.
It is uncertain whether Cotton’s hold is still formally in place, but it makes no practical difference, with
Senate Democrats having otherwise been blocked by other Republican senators in recent attempts to
confirm the quintet as part of larger groups of judicial nominees.
With that continued blockade, experts are largely pessimistic that the group's nominations will move
forward in the few in-session weeks that the Senate has left this year.
One reason they cited is that nominees for Washington, D.C.-based courts like the Court of Federal
Claims are not tied to a home state in the way district and circuit court nominees are, and may not get
the push from a supportive senator that they need, even as delays in cases hurt some senators’
constituents.
And if Republicans keep the Senate in November, and especially if they retake the White House, there is
little incentive for the Senate to move on judicial nominations, with the “Thurmond Rule” — an informal
practice under which judicial confirmations are slowed or stopped in the last year of a presidency,
particularly in the last half of the year — perhaps coming into play, experts say.
Even if Democrats keep the White House and retake the Senate, Republican senators’ focus will likely be
on confirming politically palatable judicial nominees from their home states ahead of the Senate
switchover, not the Court of Federal Claims quintet, according to Tobias.
“If in fact [that happens], I think that the Republicans are likely to want to move as many of the district
and circuit [court] nominees as they can stomach,” he said.
In the meantime, with the quintet of Federal Claims nominees apparently serving as “pawns in a larger
game,” important cases heard by the court may be delayed or, otherwise, fail to receive the full
attention they deserve, particularly contract disputes required to be heard on abbreviated timelines,
Wiener says.
“Some of the country’s most critical cases in terms of government contracts are before this court,” he
said. “You’ve got the national defense industry before this court on contract disputes. What’s more
important than securing our nation’s military and having a process in place and a court where our
defense contractors can seek redress?”
--Editing by Rebecca Flanagan and Emily Kokoll.
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