2. equal" programs upheld under Plessy. Rather, I referred to Plessy in the context of In Department of Defense v. Meinhold, 34 F.3d 1469 (9th Cir. 1994) you argued in favor I support the filing of amicus briefs, especially in important litigation such as the Meinhold case, because I believe it is important for courts to be made aware of viewpoints that might not be represented by the parties. Please describe the viewpoints that Pacific Legal Foundation held in this case that you felt would not adequately be represented by the parties to the Meinhold litigation? Please provide a copy of your briefs in this litigation. A. In the Meinhold case, the brief we submitted on behalf of our clients did not take any position on the military policy in question. We made two arguments on behalf of our clients. The first was that the district court failed to give the proper deference to the policy judgments of the Congress and the President in this area of military policy. The second was that the district court exceeded its authority in enjoining regulations and branches of the military that were not at issue in the case. Although it might not be apparent from the Ninth Circuit's opinion in this case, the brief we filed was just not on behalf of Pacific Legal Foundation. My clients in the matter included a sergeant in the U.S. Army Reserve, a private first class in the U.S. Army, and 19 nationally prominent military and veterans organizations with combined membership of over 4 million citizens: Veterans of Foreign Wars of the United States; Air Force Association; Air Force Sergeants Association; Association of the United States Army, Enlisted Association of the National Guard of the United States; Fleet Reserve Association; Jewish War Veterans of the United States of America; Marine Corps League, Marine Corps Reserve Officers Association; National Association for Uniformed Services/Society of Military Widows; National Guard Association of the United States; Naval Reserve Association; Navy League of the United States; Non Commissioned Officers Association; Reserve Officers Association; The Retired Enlisted Association; The Retired Officers Association; United States Army Warrant Officers Association; and United States Coast Guard Chief Petty Officers Association. The active service members we represented had a viewpoint distinct from that of the Department of Defense and the Department of Navy, as these individuals are subject to military regulations and would be directly and personally affected by any shift in military decision making from the Congress and the Executive to the courts. Several of the organizations we represented had participated in the decision making process concerning the policy at issue in the case, having submitted written statements to Executive branch offices and having testified in Congressional hearings, and these groups had a distinct viewpoint-they wished to preserve their role in policymaking by keeping 1. 2. 3. Victor Wolski Nominee to the Court of Federal Claims Written Questions Submitted by Senator Leahy Q. Do you believe that the test announced by the Supreme Court in Penn Central Transportation v. New York City, 438 U.S. 104 (1978), and its subsequent application allows for the consideration of the public's interest in determining whether a government action exacts a taking? A. Yes. The Supreme Court most recently in Tahoe-Sierra Preservation Q. Do you personally believe there is a public interest in protecting the A. Judges must follow the law, including judicial precedents according to the doctrine of stare decisis, and apply the law to the facts of each particular case before them. The Supreme Court has long held, most recently in TahoeSierra, that protection of the environment serves a public interest, and I will apply those precedents. Q. Given your demonstrated ideological orientation, please explain why you would want to be a judge on this court when it would require you to set your principles aside and act as a neutral arbiter? A. I would respectfully disagree that throughout my career I have demonstrated an "ideological orientation." I have held several positions during my professional career for which I have set aside my personal political or policy views. During my clerkship with a United States District Court Judge, for instance, it was my responsibility to assist a neutral arbiter in deciding cases based on the law. Similarly, my work at the Department of Energy's Office of the General Counsel did not involve my personal political or policy views. These jobs, and my work as an assistant to the late Secretary of Agriculture Richard Lyng, were motivated by my belief in service in the public sector-a principle that similarly motivates my interest in a judgeship. During my three and one-half years as an aide to Senator Connie Mack, it was my duty to put aside any personal policy goals in order to advance the Senator's own interests. Furthermore, my work as a litigator in private practice over the last two and one-half years has not involved the furthering of my personal policy goals, but instead has concerned furthering the interests of 4. I would like to be a judge on the United States Court of Federal Claims because I believe that this court serves a very important role in our democratic republic. It is significant that, in a society whose government is of the people, the government has waived sovereign immunity to allow money damages claims to be brought against it, in a forum in which the citizens are treated as equals with their government. On this court, it is important to have judges who can balance the interests of the private citizens against important public goals and purposes, the pursuit of which may have given rise to their claims. I believe that I have a broad and balanced perspective, with a strong appreciation for the policymaking role of Congress after 3 and 1⁄2 years of service to the Senate, and a respect for the executive branch based, in part, on service in two Cabinet-level departments. As a litigator I have represented the interests of private individuals, and have represented the interests of government entities--including state and local governments, the Governor of Puerto Rico, and the Medicare system. I am also familiar with three areas of the law that constitute a large portion of the court's docket: federal taxes, government contracts, and takings. Q. Do you personally hold the belief that "[w]hen a city imposes restrictions on the right to develop or use real property, usually in the context of a permit application process, the city is affecting a fundamental right" as you argued while employed by the Pacific Legal Foundation? A. This quotation is taken from a petition for a writ of certiorari in a case that since that petition was filed (in February, 1997), and thus I do not know if the Circuit split persists. The Due Process Clause is not a money damagesmandating provision, and it is settled that actions in the Court of Federal Claims cannot be based on this provision. See, e.g., Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980). Thus, these issues are beyond the jurisdiction of the court. Were the issues to somehow come before me on the court, I would follow the law as determined by the applicable precedents of the Federal Circuit and the Supreme Court, and not my personal beliefs on the subjects. We write to express our serious concerns about the nomination of Victor J. Wolski to the United States Court of Federal Claims (CFC). Mr. Wolski has spent much of his legal career challenging environmental protections on behalf of the Pacific Legal Foundation, an ultra right-wing property rights group funded largely by private industry. Moreover, Mr. Wolski admits that he has taken those positions because he personally believes in them. Indeed, he told the National Journal in 1999 that "every single job I've taken since college has been ideologically oriented, trying to further my principles," which he describes as a Libertarian view on government power and "property rights." These positions and statements make him an inappropriate choice for the CFC, which decides many such property rights cases. The Importance of the Court of Federal Claims Due to its exclusive jurisdiction over certain types of cases, the CFC is one of the most important courts in the country for those seeking to enforce legal protection of the environment. Created by Congress in 1982, the court was given exclusive jurisdiction over most "takings" claims against environmental and other regulations. Recent CFC rulings illustrate the court's ability to take an activist stance that harms the environment, ignoring Supreme Court precedent and forcing taxpayers to pay corporations large sums to compel them to follow basic health, safety and environmental protections. Last year, for example, the CFC awarded over $10 million to a chicken factory, in two separate rulings, for complying with regulatory requirements against salmonella poisoning, and it rewarded a coal company with $40 million just for seeking a "compatibility" ruling before mining coal in a national forest. Another initial ruling by the CFC found that water left in a stream to protect endangered species constituted a physical taking. As illustrated by these instances of anti-environmental activism, the court seems to already have on its bench a number of property rights extremists. David Coursen, a former senior counsel for the Environmental Protection Agency, stated that "in the CFC the identity of the judge seems to be an unusually good indicator of the likely outcome of the cases," noting that "fourteen wetlands decisions, from a wide range of judges, reject takings claims. Only four decisions find takings, and three of these decisions are from a single judge [former Chief Judge Loren Smith], who, in turn, has never decided an environmental takings case in favor of the government." David F. Coursen, The Takings Jurisprudence of the Court of Federal Claims and the Federal Circuit, 29 Envtl. L. 821, t202.882.8070 202.822.000 PRESIDENT JAMES D. WEILL |