Democrats can’t block even controversial judicial nominees

Trump has an opportunity to reshape the judiciary branch for a generation.

 

Damien Schiff, one of President Donald Trump’s first federal judge nominees, has said a lot of provocative things in public forums over the years. In a roundtable with other conservative lawyers, Schiff recommended selling Yosemite National Park to the Walt Disney Company. “They’d do a damn better job, I think,” said Schiff, a lawyer for the Pacific Legal Foundation, which advocates for private-property rights and against government regulation. In a blog post, he called moderate Supreme Court Justice Anthony Kennedy a “judicial prostitute.” And in a televised interview, he accused the Environmental Protection Agency of treating Americans “as if they were just slaves.”

Damien Schiff testified last year before the Environment and Public Works Subcommittee about “the extravagance with which the EPA and the Corps view their authority under the Clean Water Act.” Now he’s nominated for the U.S. Court of Federal Claims.
U.S. Senate

A few years ago, senators might have blocked such a controversial nominee: The threat of the filibuster meant that nominees needed the support of 60 senators. But in 2013, then-Senate Majority Leader Harry Reid, D, got rid of it for nominees for lower federal courts because Republicans were using it to block President Barack Obama’s judicial candidates. Now it only takes 51 votes to confirm a federal judge, and with the Republicans’ 52-48 majority, Schiff and other Trump nominees will likely sail through. The Senate Judiciary Committee in July voted 11-9, along party lines, to recommend him for confirmation by the full Senate.

Trump could significantly transform the judiciary to reflect his conservative, anti-government priorities, not only because of the filibuster’s loss but also because he has a large number of vacancies to fill. Senate Republicans blocked so many of Obama’s nominees that today there are vacancies for 136 federal judges out of 890 positions. (Obama had 54 vacancies to fill when he was elected in 2008.)

Trump’s appointees likely would weigh in to reduce environmental protections and increase fossil fuel development and other extractive industries on federal public lands — and that could continue long after he’s gone, because many federal judges are appointed for lifetime terms. “The West is changing; people are moving to the West for the quality of life, the big open spaces, clean air and clean water,” says Todd Tucci, senior attorney at the nonprofit Advocates for the West. “Trump’s nominees to the bench are an existential threat to these values.

If the Senate confirms him, Schiff, 38, could be on the U.S. Court of Federal Claims for decades, hearing cases against the federal government and deciding whether and how much compensation the government owes the people and companies involved. Claims judges serve 15-year terms and are routinely reappointed or continue to hear cases as senior judges.

Schiff has spent his career defending landowners against federal and state governments, particularly when environmental laws like the Endangered Species Act or the Clean Water Act curtail what they can do on their property. He consistently has argued that agencies overregulate or that their actions constitute “takings” under the Fifth Amendment, which requires that private property not be taken without just compensation.

When Democratic senators pressed Schiff during his June confirmation hearing, he said his personal views would not impact his decisions as a judge: “I would faithfully apply the law and the facts without any influence whatsoever of any personal views I might have.”

Environmental groups, civil liberties organizations and many law professors worry, though, that Schiff would rule in favor of companies and individuals and give them large financial awards, perhaps discouraging agencies from enforcing public and environmental safeguards in the future. “He has been appointed specifically because he will broadly interpret the takings clause and make it much more difficult to regulate in the environmental, health and safety areas,” says Daniel Rohlf, a law professor at Lewis and Clark Law School in Oregon, who with 28 other law professors wrote a letter urging the Senate to block Schiff’s nomination.

Schiff has boosters among conservative legal scholars, who cite his significant experience arguing cases on land use and clean water issues, including before the Supreme Court. “That’s precisely the kind of judge that the claims court needs,” says Steven J. Eagle, a law professor at George Mason University.

Eagle referenced a case Schiff argued successfully before the Supreme Court, Sackett vs. EPA, involving Idaho landowners who filled in a half-acre wetland. The EPA ordered the couple to remove the fill or face steep fines. Schiff won a unanimous decision saying his clients had the right to challenge an EPA order in court. Eagle says this illustrates that Schiff understands the burdens that regulations can impose on individuals: “That’s the kind of human dimension that Damien is particularly sensitive to.”

The Senate Judiciary Committee is scheduled to vote on Schiff and three other federal judges on Thursday, July 13. A vote on his confirmation by the full Senate has yet to be scheduled. Trump will also get to fill an opening on the key court that reviews environmental regulations, the U.S. Court of Appeals for the District of Columbia Circuit. That appointment is not expected to change the court’s balance, though, because retiring Judge Janice Rogers Brown was also conservative and skeptical of regulation.

With so many openings and no filibuster to deter him from selecting arch-conservatives, Trump is positioned to have a major impact on the judicial system. The only question is whether the continuing White House crises will keep him from naming candidates for judges and hundreds of other important federal positions. So far, Trump has sent the Senate 18 nominations for federal judges, and the Senate has approved only two, including Supreme Court Justice Neil Gorsuch. Any other Republican president would run with this opportunity, says Jim Burling of the Pacific Legal Foundation, but with Trump: “It depends on how much he gets distracted. Nobody has ever seen anything like the show that’s going on right now.” 

Correspondent Elizabeth Shogren writes HCN’s DC Dispatches from Washington.