Trent Dougherty, General Counsel, August 7, 2017
In Ohio – where we are facing environmental impacts from pipelines crisscrossing the state, to drilling in our lone National Forest, and lead and toxic algae in our water – decisions by the Federal Courts may serve as the final decision between environmental protection or degradation.
It is important that judges serving on the Federal Bench are impartial and fit to serve us. President Trump, however, has nominated a number of potential federal judges whose judicial independence is questionable, and their threat to the future of the environment and environmental justice is real. This is why OEC and our allies are working to hold accountable President Trump’s judicial nominees and the members of the Senate who must confirm them.
One of the most disheartening of President Trump’s judicial nominees, Damien Schiff, will soon go before the U.S. Senate to be confirmed as a judge for the Court of Federal Claims. Mr. Schiff has a long history of fighting against the environment and the rights of marginalized communities, and simply lacks the temperament needed to protect our rights. We need the Senate to protect our courts and environment and oppose his nomination.
Typically described as the “keeper of the nation’s conscience,” the Court of Federal Claims allows citizens to bring a suit against the federal government for monetary damages that arise under the Constitution, federal statutes, executive regulations, or an expressed or implied contract. The Court of Federal Claims has exclusive jurisdiction over all monetary claims against the federal government that exceeds $10,000. Judges for the Court of Federal Claims are appointed by the President of the United States with the advice and consent of the Senate. Once approved by the full Senate, a judge serves a 15-year term.
The US Court of Federal Claims will likely oversee controversial cases related to environmental issues, including cutting edge Fifth Amendment takings cases concerning water quality and habitat protection. Having judges on the Court of Federal Claims with the highest integrity is of national importance because the court holds a critical role in allowing U.S. citizens to defend their statutory rights against governmental abuse.
As the detailed analysis of Alliance for Justice chronicled, Mr. Schiff, who once referred to sitting Supreme Court Justice, Anthony Kennedy, as a “judicial prostitute,” however, lacks the temperament to protect our rights. Schiff has spent almost his entire legal career at the Pacific Legal Foundation, and during his tenure has claimed the U.S. EPA treats Americans as slaves and continues to dispute scientific evidence concerning the environment and claims that “radical environmental regulation” was a “major contributor” of the California drought.
Additionally, Mr. Schiff has taken a detrimental position against endangered species. He has attempted to dispute the DNA evidence that proved the California Gnatcatcher was an endangered species, and has claimed that the Endangered Species Act is unconstitutional, and proclaimed that Earth Day was “a threat to individual liberty and property rights.”
Furthermore, as the Alliance For Justice report outlines, Mr. Schiff’s record for supporting the people is alarming. He believes the Occupational Safety and Health Administration is unconstitutional and corporate speech and campaign financing should be encouraged. He holds strong views against the rights of women and the LGBTQ community.
Mr. Schiff is poised to decide for the next 15 years if the government has violated people’s rights. He has spent his legal career fighting against very rights he will be asked to uphold and believes many of the rights that people hold dear – workplace safety, clean water, and protecting endangered species – are unconstitutional. His record and lack of respect for the court make him an unfit guardian of the “nation’s conscience.”
When the nomination comes before the US Senate, we are counting on Senators Portman and Brown to listen to make the right decision and VOTE NO.