Senate approves appointee to federal claims bench

Greenwire
July 10, 2003
Jen Koons

The Senate yesterday placed Victor J. Wolski on the U.S. Court of Federal Claims over opposition from numerous environmental groups who said his ideological leanings threaten enforcement of key environmental protections under cases he will decide. Wolski, a 40-year-old attorney and former counsel for the Pacific Legal Foundation, was confirmed on a 53-43 vote, with three Democrats voting for the nominee and no Republicans voting against. The Sacramento, Calif.-based Pacific Legal Foundation is one of the nation's most active litigators against government regulations, particularly those dealing with endangered species, Western water rights and other environmental issues.

The Court of Federal Claims, created in 1982 under the Reagan administration, is of particular interest to property rights groups and environmentalists because it handles many of the nation's high-profile takings cases. A property taking refers to the government imposing strict limits on private landowners, including the stripping of development rights, to meet a federal statute or regulation.

Last month, 13 environmental groups -- including the Sierra Club, the Endangered Species Coalition and Friends of the Earth -- sent a letter to the Senate arguing against Wolski's confirmation. "Mr. Wolski is a self-described ideologue on the very property rights issues that he would decide as a [Court of Federal Claims] judge," the groups wrote.

Doug Kendall, director of the nonprofit Community Rights Counsel, said yesterday that Wolski has "spent the largest part of his legal career challenging environmental protections on behalf of one of the most extreme takings or property rights groups in the country."

But Anthony Caso, vice president and general counsel for the Pacific Legal Foundation, defended Wolski's appointment. "I know Vic is a very bright lawyer with a very high regard for the Constitution," Caso said. "He was always guided first by what he thought the Constitution required and what it meant rather than a particular result." Wolski will serve a 15-year term, after which he becomes eligible for a lifetime position as a senior judge. Currently 13 of the court's 24 members are senior judges.

Conservation groups have long worried that successful takings lawsuits brought by landowners could force state and federal governments to pay private individuals and companies to meet environmental regulations (Greenwire <http://www.eenews.net/Greenwire/searcharchive/test_search-display.cgi?q
=&file=%2FGreenwire%2Fsearcharchive%2FNewsline%2F2002%2FFeb27%2F02270202.htm>, Feb. 27, 2002). "The Federal Claims Court has exclusive authority to hear most claims brought by corporations seeking money simply for complying with environmental standards," Kendall said. "In other words, it has exclusive jurisdiction over big-dollar takings claims against the federal government, giving it the power to affect the enforcement of many federal environmental standards." In addition to the Wolski confirmation, the Senate expanded the size of the Federal Claims court by three judges yesterday. The new seats will be filled by Mary Ellen Coster Williams, Susan Braden and Charles Lettow, all of whom were confirmed on a voice vote.

But one environmental attorney, Glenn Sugameli of Earthjustice, raised questions about whether the court needed to be larger. "At the very least, the Senate should have considered whether the [court] needs more judges -- each of whom cost the taxpayers an average of $1 million a year," he said.

Frist forces nomination
Wolski's confirmation represented an example of a broader effort by Senate Majority Leader Bill Frist (R-Tenn.) to break Democratic opposition to President Bush's judicial nominees. Frist invoked cloture to force a vote on Wolski's nomination. Last month, the Senate Rules and Administration Committee voted 10-0 to approve a measure intended to revise the confirmation process for judicial nominees, some of whom have been blocked by Democrats and opposed by a handful of national environmental groups. The proposal <http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.res.00138:>, put forth in May, would amend Senate Rule XXII <http://rules.senate.gov/senaterules/rule22.htm> to gradually reduce the number of votes necessary to overcome filibusters on judicial confirmations. Under Frist's proposal, 60 votes would be required to stop a filibuster on the first try, 57 on the second, 54 on the third and 51 on the fourth. Current rules require 60 votes to end debate. No floor vote has been scheduled for the resolution. Republicans have tried six times since March to end the Democratic filibuster of Miguel Estrada's nomination to the U.S. Court of Appeals for the District of Columbia and have failed twice to end the more recent filibuster of Texas Judge Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Democrats argue that, despite the recent filibusters, the process is fair, pointing to the 132 nominees who have been confirmed since Bush took office. National environmental groups have mounted campaigns to block several of Bush's appeals court nominees, including Owen, Estrada and former Ohio Solicitor General Jeffrey Sutton (R), appointed in April to the 6th U.S. Circuit Court of Appeals.

Pryor nomination heads for vote
The Senate Judiciary Committee, meanwhile, intends to vote next week on the nomination of Alabama Attorney General William H. Pryor (R) to the 11th U.S. Circuit Court of Appeals, Kendall said.

Viewed as a strict constructionist on constitutional matters, Pryor has been outspoken about his views on a issues ranging from separation of church and state to abortion rights to environmental policy, including federal authority over wetlands and enforcement of clean air standards for states that fail to force emissions reductions from industrial facilities and other sources.