The Other Court-Packing Scandal

Conservatives have recently woken up to President Obama's attempt to pack the D.C. Circuit court of appeals with liberal judges.  What little attention the media has dedicated to court packing has entirely revolved around that court.  While it is understandable that the media is focused on the D.C. Circuit, one of the most prestigious courts in the country, it is a mistake to ignore the President's even more outrageous attempt to pack another court with sympathetic judges. 

The United States Court of Federal Claims is a specialty court located just across the street from the White House.  The Court serves an important function: it adjudicates claims for monetary damages, including takings claims, brought against the United States government.  The first thing one notices upon entering the courthouse is President Lincoln's quote -- "It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals" -- emblazoned on the wall.  The court has often been referred to as "the conscience of the federal government" because, in some instances, it is all that stands between a citizen and unfair treatment at the hands of the government.

This court's mission is more critical than ever in light of the rapid growth in the size and intrusiveness of government power under President Obama -- and unless Senate Republicans object, its character is going to move far to the left in a few weeks. 

Unlike judges on other federal courts, who serve for life, judges on the Court of Federal Claims are initially appointed for a fifteen-year term.  Any judge who is not reappointed for a second term may elect to continue serving as a senior judge and to receive his full salary for the rest of his life.  The one caveat to this generous rule is that the chief judge may call on any such judge to continue hearing cases until the judge meets certain criteria, based on age and years of service, that entitle him to fully retire with pay.

Eight senior judges currently sit on the Court of Federal Claims.  All eight were appointed by Republican presidents.

Senior judges serve at the discretion of the chief judge.  Last year, Chief Judge Emily Hewitt, a Clinton appointee who was elevated to chief by President Obama, sent a letter to the Administrative Office indicating that she would no longer require seven of the eight Republican appointed Senior Judges to hear cases.  These seven judges, including the extremely well-regarded Loren Smith, do not want to retire -- they are ready and able to continue hearing cases -- but the chief judge is forcing them into retirement due to an alleged dearth of cases.  These judges will continue to receive their full salaries for the rest of their lives, but they will no longer contribute any work, despite their desire to do so.

These dismissals might make sense if there truly were not enough cases for all of the judges.  But President Obama recently nominated two new judges to serve on the Court of Federal Claims, and five more vacancies will be created over the next few months. 

If Chief Judge Hewitt was warranted in her forcible retirements, there is no conceivable reason why the president should nominate (or the Senate should confirm) two new judges to the court.  At best, this confluence of events results in needless expense as two new judges' (and their law clerks') salaries are unnecessarily added to the government's payroll.  The more likely explanation is that this is a transparently political effort to forcibly retire judges in order to make room for Obama appointees, despite the fact that doing so will cost the taxpayers more money and rob the court of decades of experience and excellence.

It is admirable that people have started to pay attention to the D.C. Circuit court-packing scandal, but they should be careful not to let this additional scandal fall through the cracks.  These judges have faithfully served the American people for many years and are eager to continue their service.  They deserve better than to be tossed aside for political reasons.

Conservatives have recently woken up to President Obama's attempt to pack the D.C. Circuit court of appeals with liberal judges.  What little attention the media has dedicated to court packing has entirely revolved around that court.  While it is understandable that the media is focused on the D.C. Circuit, one of the most prestigious courts in the country, it is a mistake to ignore the President's even more outrageous attempt to pack another court with sympathetic judges. 

The United States Court of Federal Claims is a specialty court located just across the street from the White House.  The Court serves an important function: it adjudicates claims for monetary damages, including takings claims, brought against the United States government.  The first thing one notices upon entering the courthouse is President Lincoln's quote -- "It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals" -- emblazoned on the wall.  The court has often been referred to as "the conscience of the federal government" because, in some instances, it is all that stands between a citizen and unfair treatment at the hands of the government.

This court's mission is more critical than ever in light of the rapid growth in the size and intrusiveness of government power under President Obama -- and unless Senate Republicans object, its character is going to move far to the left in a few weeks. 

Unlike judges on other federal courts, who serve for life, judges on the Court of Federal Claims are initially appointed for a fifteen-year term.  Any judge who is not reappointed for a second term may elect to continue serving as a senior judge and to receive his full salary for the rest of his life.  The one caveat to this generous rule is that the chief judge may call on any such judge to continue hearing cases until the judge meets certain criteria, based on age and years of service, that entitle him to fully retire with pay.

Eight senior judges currently sit on the Court of Federal Claims.  All eight were appointed by Republican presidents.

Senior judges serve at the discretion of the chief judge.  Last year, Chief Judge Emily Hewitt, a Clinton appointee who was elevated to chief by President Obama, sent a letter to the Administrative Office indicating that she would no longer require seven of the eight Republican appointed Senior Judges to hear cases.  These seven judges, including the extremely well-regarded Loren Smith, do not want to retire -- they are ready and able to continue hearing cases -- but the chief judge is forcing them into retirement due to an alleged dearth of cases.  These judges will continue to receive their full salaries for the rest of their lives, but they will no longer contribute any work, despite their desire to do so.

These dismissals might make sense if there truly were not enough cases for all of the judges.  But President Obama recently nominated two new judges to serve on the Court of Federal Claims, and five more vacancies will be created over the next few months. 

If Chief Judge Hewitt was warranted in her forcible retirements, there is no conceivable reason why the president should nominate (or the Senate should confirm) two new judges to the court.  At best, this confluence of events results in needless expense as two new judges' (and their law clerks') salaries are unnecessarily added to the government's payroll.  The more likely explanation is that this is a transparently political effort to forcibly retire judges in order to make room for Obama appointees, despite the fact that doing so will cost the taxpayers more money and rob the court of decades of experience and excellence.

It is admirable that people have started to pay attention to the D.C. Circuit court-packing scandal, but they should be careful not to let this additional scandal fall through the cracks.  These judges have faithfully served the American people for many years and are eager to continue their service.  They deserve better than to be tossed aside for political reasons.