Exploiting The 'Obscurity' Of A Key Federal Court

The U.S. Court of Federal Claims has been called the “People’s Court” and the “keeper of the nation’s conscience” because this is where U.S. citizens can seek monetary redress when they feel they’ve been wronged by their government.

The court has nationwide jurisdiction, meaning it can affect Americans in many areas, including international trade, government contracts, patents and monetary claims by federal employees and veterans.

In view of its vast power, it would follow that the court’s judges, who serve 15-year terms and can be reappointed, should be experienced and unbiased. That’s even more true when you factor in that successive reappointments, or subsequent appointment to a higher court, can lead to a lifetime career on the federal bench. But the recent administration nominations of Damien Schiff, Ryan Holte and Stephen Schwartz to this court seem to favor ideology over credentials, bias over impartiality. Unfortunately, the manner in which Federal Claims Court judges are chosen allows unqualified individuals to get through with a minimum of scrutiny.

For other federal judgeships, senators from the home state are asked to signal their approval of a candidate by returning what is know as “a blue slip.” In addition, the American Bar Association reviews and then rates each candidate’s qualifications. But both of those fail-safe measures don’t apply to the Claims Court, allowing the president to nominate, if he wants to, problematic nominees – essentially turning the court into a convenient “side door” for getting youthful, underqualified but hard-core conservatives into the federal justice system.

And that’s exactly what he has done.

Schiff, Holte and Schwartz are three white males who share an age bracket—all are in their thirties—and an ideology: profoundly conservative.

Of the three, Schiff has garnered the most attention because of his outrageous statements, such as calling U.S. Supreme Court Justice Anthony Kennedy “a judicial prostitute.” In anonymous blogging activities that he eventually owned up to, he has expressed strong opposition to, among other things, civil rights, LGBTQ rights, women’s rights, environmental protection and unions. He has made no secret of his desire to see the judicial branch turn back the clock, stating that “the Supreme Court, with just five votes, can overturn precedents upon which many of the unconstitutional excrescences of the New Deal and the Great Society eras depend.”

Less flamboyant but equally dangerous is Ryan Holte, who openly admits that he’s never tried a case. Why would someone with so little experience be tapped to serve on one of the most important federal courts in the country? Because what he lacks in experience he makes up in a conservative ideological agenda. He is a member of the Teneo Network, which was described by the National Review as “a network of young conservatives doing what they can to advance conservative principles” and, ominously, was founded by Evan Baehr, who received a fellowship from the Alliance Defending Freedom—described by the Southern Poverty Law Center as a hate group.

Stephen Schwartz shares the ultraconservative agenda of these other two and has opposed civil rights for immigrants, minorities, women, environmentalists and LGBTQ people. His career has been a defense of the indefensible—from voter registration barriers in North Carolina, laws restricting access to abortion care in Louisiana, and the denial of driver’s licenses to Deferred Action Childhood Arrivals (DACA) recipients in Arizona and Florida.

The resumes of these three stand in sharp contrast to President Obama’s nominees for this same court. For the seat Holte hopes to get, Obama chose Judge Nancy Firestone, who already had 15 years of experience on the Court of Federal Claims and was being renominated. Firestone’s sterling credentials included a 12-year stint as an attorney with the Justice Department, and three years as a judge on the EPA’s Environmental Appeals Board. For the seat Schiff wants, Obama nominated Jeri Kaylene Somers, a retired Air Force lieutenant colonel who served as a judge advocate general and then as a military judge in the Air Force. Firestone and Somers were blocked by Senate Republicans .

Meanwhile Schiff, Holte and Schwartz bring to mind Trump judicial nominees like Brett Talley and Matthew Petersen, both of whom were forced out of the running when their lack of credentials became painfully obvious: Petersen’s failure was played out in public, as he was unable to answer basic legal questions at his confirmation hearing. Despite these failures, as of this writing the never-tried-a-case Holte is still on the White House’s “live” list of judicial nominees, and while Schwartz and Schiff were not on the first list of renominated candidates for 2018, they haven’t been pulled and may well be on the next one.

The Court of Federal Claims is too important to be used as a prep school for young extremists who might be unable to gain entry to the federal judiciary by other means. It’s a place where Americans have a right to expect a fair hearing of their grievances against their government and a fair compensation for injustice. It’s time to pay more attention to the way in which this White House is taking advantage of the lesser scrutiny afforded nominees to the more “obscure” federal courts.