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HISTORY OF THE TAKINGS PROJECT
Creating the Courts, Packing
the Benches, Greasing the Wheels
Early in his first term, while Republicans controlled the
Senate, President Ronald Reagan ushered the Federal Courts
Improvement Act of 1982 (FCIA) through Congress. The act replaced
two predecessor courts with a new U.S. Claims Court- now called
the Court of Federal Claims - and created a Federal Circuit
Court of Appeals to hear appeals from the Claims Court.
With the exclusive jurisdiction over takings claims
greater than $10,000 in money damages against the federal
government seeking, the two courts virtually control the
course of federal takings law. Provisions of the act gave
Presidents Reagan and Bush a remarkable opportunity to
shape the composition of these two critical courts.
- The FCIA provided that the terms of all
carry-over judges on the Claims Court would
expire by October 1, 1986. By the middle of his
second term Reagan was thus able to appoint every
judge on its bench. To this day, the Court of
Federal Claims is staffed entirely by Reagan/Bush
appointees.
- The 15-year term of the Reagan appointees on the
Court of Federal Claims should have expired in
1997. But in 1992- at the recommendation of a
sitting Claims Court judge - federal
administrators changed the rules to grant
automatic 'senior status' for any judge not
reappointed. This means President Clinton can
appoint new judges to the court, but he cannot
remove the old ones.
- On the Federal Circuit Court of Appeals, most
carry-over judges from its predecessor court
either shifted to senior status or retired in the
face of a dramatically expanded case roster,
opening up 11 appointments for Presidents Reagan
and Bush - including 8 of the 11 judges now
serving (one spot on the 12-member court is
vacant after a Reagan appointee moved to Senior
status in December).
A Dream Team of
Ultra-Conservative Jurists
Rigorous orchestration of the appointments process by
the Meese Justice Department created the nation's most
activist court on takings issues. As Clint Bolick, the
Litigation Director for the conservative Institute for
Justice, noted:
The Claims Court is a place where the Reagan and
Bush Administrations have been able to place
top-notch conservative judges without getting much
attention, That is the result of liberals being
somewhat asleep at the switch and the
Administrations' being extremely sophisticated in
their selection and placement of judges.
Among the more notable appointees to the two courts
are:
- Loren Smith (Chief Judge, Court of Federal
Claims) - Chief Counsel, Reagan for President
1976 and 1980 and a member of Richard Nixon's
Watergate defense team. An extreme libertarian,
Judge Smith wrote a 1996 opinion allowing a
rancher who leased grazing rights from the
government to press a takings claim because
federally-protected elk from a nearby National
Forest ate grass that, he claimed, belonged to
his cows.
- Wilkes Robinson (Court of Federal Claims) -
Headed the highly conservative Gulf & Great
Plains Legal Foundation, now the Landmark Legal
foundation, which has represented developers and
corporate interests in takings cases.
- S. Jay Plager (Federal Circuit Court of Appeals)
- Headed the famously anti- regulatory Office of
Information and Regulatory Affairs in President
Reagan's Office of Management and Budget. Later,
as Executive Director of Reagan's Task Force on
Regulatory Relief, Plager was the designated
conduit between federal officials and industries
seeking special relief from federal rules.
- Judge Randall Rader (Federal Circuit Court of
Appeals) - Served nearly eight years as Judiciary
Committee counsel to Senator Orrin Hatch (R-UT).
- Robert Michel (Federal Circuit Court of Appeals)
- Served as top aide and counsel to Senator Arlen
Specter (R-P A).
- Judge Robert Mayer (Federal Circuit Court of
Appeals) - Deputy to the current Ninth Circuit
Court of Appeals judge Alex Kozinski during
Kozinski's controversial stint as Director of the
Special Counsel's office at the Merit Systems
Protection Board.
Far-Right
Benefactors Foot the Bill for Takings Litigation and
Judicial Junkets
To promote this the activism on the bench, more than a
dozen independent legal foundations have sprung up around
the country, creating a small army of litigators to force
takings cases through the courts. Funded almost entirely
by large corporations and far-right philanthropists, they
provide direct representation for developers in takings
cases, recruit and train private practice lawyers to
bring cases of their own, and offer a network for pro
bono assistance.
The same conservative funders behind the litigation
effort have also invested heavily in the Foundation for
Research on Economics and the Environment (FREE), a group
supporting "free market environmentalism."
Since 1992, FREE has provided at least 109 federal court
judges with all-expense-paid trips to its seminars at
luxury resorts near Bozeman, Montana. FREE's promotional
materials advertise that judges are given ample time at
these seminars for "cycling, fishing, golfing,
hiking and horseback riding." These trips are
conservatively valued at several thousand dollars.
FREE guests include the authors of every major Federal
Circuit and Court of Federal Claims case expanding the
rights of property owners. Judges Michel, Mayer, Newman,
Rader and Plager of the Federal Circuit have taken the
trip, as have Chief Judge Smith, and Judges Futey,
Robinson, Tumer, Yock from the Court of Federal Claims.
Judges Plager and Michel have each been twice.
Conflict with
Judicial Ethics Code?
The Ethics Reform Act of 1989 provides that judges
shall not "accept anything of value from a person.
whose interests may be substantially affected by the
performance or nonperformance of the individual's
official duties," except under "reasonable
exceptions" established by the Administrative Office
of the United States Courts.
The rules expressly bar judges from attending
educational seminars where "the sponsor, or source
of funding, is involved in litigation, or likely to be so
involved, and the topics covered in the seminar are
likely to be in some matter related to the subject matter
of such litigation."
FREE's Funding
- FREE's main backers - the Olin Foundation, the
Carthage Foundation, the Sarah Scaife Foundation
and the M.J. Murdoch Foundation - have invested
very heavily in groups such as the Pacific Legal
Foundation (PLF), Defenders of Property Rights
and the New England Legal Foundation (NELF) which
litigate takings cases in the Federal Circuit.
- The M.J. Murdoch Foundation is a large
contributor to both FREE ($228,000 from 1993 to
1995) and the Pacific Legal Foundation ($600,000
from 1992 to 1996), which appeared before the
Federal Circuit Court in the seminal Florida Rock
and Loveladies Harbor takings cases.
- Through his Carthage Foundation, Richard Mellon
Scaife is the largest single contributor to FREE
(at least $500,000 from 1990 to 1996) and a large
contributor to PLF ($350,000 in 1990 and 1991)
and the Defenders of Property Rights. Through his
other organization, the Sarah Scaife Foundation,
Richard Scaife is one of the largest contributors
to NELF.
- In 1994 the Olin Foundation gave NELF $50,000 to
litigate on behalf of the property owners in the
landmark takings case, Preseault v. U.S., the
following year Olin gave FREE $25,000 for resort
seminars attended by several of the Federal
Circuit judges who decided to hear the case en
banc, and ruled in favor of NELF.
Congressional
Criticism
CRC's research has also caused an outcry in the halls
of Congress. In particular:
- Representative Zoe Lofgren (D-CA), at a House
Judiciary Committee hearing in June of this year,
called it "totally, totally inappropriate
for judges to be accepting freebie trips"
and commented "[t]here is nothing more
damaging to citizens' faith in the country and in
the due process of law than the belief, even if
inaccurate, that those who are trusted to judge
have been influenced by financial
connections."
- Representative Barney Frank (D. MA), at the same
hearing, questioned why judges need to attend
privately funded educational seminars when the
taxpayer-funded Federal Judicial Center offers
non-biased educational seminars on the same
topics.
- The House Appropriations Committee, in its report for the 1999
Judiciary Appropriations Bill, demanded that the
Administrative Office of the United States Court
conduct a comprehensive review of the ethical
issues raised by privately funded judicial
education and travel.
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