[Congressional Record Volume 149, Number 100 (Wednesday, July 9, 2003)]
[Senate]
[Pages S9083-S9085]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF VICTOR J. WOLSKI, OF VIRGINIA, TO BE A JUDGE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The legislative clerk read the nomination of Victor J. Wolski, of
Virginia, to be a Judge of the United States Court of Federal Claims.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Victor J. Wolski, of Virginia, to be a
Judge of the United States Court of Federal Claims?
Mr. HATCH. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Florida (Mr. Graham), the
Senator from Massachusetts (Mr. Kerry), the Senator from Georgia (Mr.
Miller) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay''.
The PRESIDING OFFICER. (Ms. Murkowski). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 54, nays 43, as follows:
[Rollcall Vote No. 265 Ex.]
YEAS--54
Alexander
Allard
Allen
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lincoln
Lott
Lugar
McCain
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--43
Akaka
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Murray
[[Page S9084]]
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--3
Graham (FL)
Kerry
Miller
The nomination was confirmed.
Mr. LAUTENBERG. Mr. President, I rise today to express my profound
disappointment with the very troublesome nomination of Victor Wolski to
be a judge on the U.S. Court of Federal Claims.
The last time I spoke on the Senate floor about judicial nominations,
I whole-heartedly supported and endorsed President Bush's nomination of
Mr. Michael Chertoff to the Third Circuit Court of Appeals.
I commended the administration for selecting Mr. Chertoff because he
was a ``consensus nominee.'' I supported Mr. Chertoff and many other
judicial nominees because they demonstrated that they were not
ideologues beholden to a specific political agenda.
I support nominees who demonstrate moderation, fairness, open-
mindedness, and the proper judicial temperament.
Victor Wolski is a self-described political ideologue on a mission to
promote extreme right-wing libertarian views.
In his own words, Mr. Wolski told the National Journal that ``every
single job I've taken since college has been ideologically oriented,
trying to further my principles,'' which he describes as a
``libertarian'' belief in ``property rights'' and ``limited
government.''
There is nothing wrong with having convictions and strong beliefs. I
respect that. But when a judicial nominee views the world through a
limited, ideological prism, that presents a grave danger to our
democracy and judicial system.
Such a nominee does not inspire trust or confidence in our judicial
system.
Victor Wolski has unabashedly dedicated his career to promoting an
extreme right-wing crusade to erode important Federal safeguards
protecting workers, human health, and the environment.
For example, he has argued that it was ``far beyond'' Congress's
power under the Commerce Clause to protect wetlands that serve as
habitat for 55 different species of migratory birds and repeatedly
referred to these wetlands as ``puddles.''
Mr. Wolski also lacks the judicial temperament necessary for a
Federal judge.
In his testimony to the Judiciary Committee, Mr. Wolski asserted that
he ``certainly meant no disrespect'' when he referred to Members of
Congress as ``bums'' in a letter he wrote to the editor of the San
Francisco Chronicle. I wonder what he did means?
Mr. President, it is entirely permissible for Mr. Wolski--as an
advocate--to promote limited government; but he should not be a Federal
judge.
And he certainly shouldn't be a judge on the Court of Federal Claims.
This is the court that hears disputes involving the Government
arising under the fifth amendment's ``takings'' clause--the very
constitutional provision Mr. Wolski has fervently worked to undermine
and redefine.
Appointing Victor Wolski to the Court of Federal Claims is akin to
putting the fox in charge of the henhouse. It is part of the Bush
administration's war against the environment--a war the administration
is waging on many fronts--the courts included. His nomination is
another example of the Bush administration's zeal to pack the courts
with right-wing ideologues despite the President's claim that he is ``a
uniter, not a divider.'' How cynical.
The ``bottom line'' is that Victor Wolski is wholly unfit for the
position to which he has been nominated. I urge my colleagues to vote
against his confirmation.
Mr. HATCH. Mr. President, I feel compelled to take a moment to
respond to remarks of my colleague from New York on the nomination of
Mr. Wolski and the status of the Court of Federal Claims. My colleague
from New York has stated that we should not fill the judgeships that
Congress itself created. This eleventh- hour attack on the court of
claims and Mr. Wolski is simply a thinly veiled effort to stall action
on more of President Bush's judicial nominees. Let's give the President
a break and be honest.
I would like to respond to allegations that Mr. Wolski is not
qualified to serve on the court of claims. These allegations are simply
unfounded. I agree with my colleague that, in print, Mr. Wolski's
statement in his 1999 National Journal profile raised questions about
how he would view his role as a judge. But Mr. Wolski was indeed
thoroughly questioned about this statement at his hearing. His response
to those questions has convinced me that this statement should not be
any bar whatsoever to his confirmation. Mr. Wolski testified at his
hearing that he understands that the role of a judge is not political.
He understands that the role of a judge--especially a trial court
judge--is to follow the law and not to consider personal beliefs or
positions argued as an advocate in determining how to rule. Mr. Wolski
explained during his hearing that this statement was meant to reflect
that his decision to work for our former colleague, Senator Connie
Mack, was consistent with his commitment to public service. Mr. Wolski
emphatically stated on several occasions throughout his hearing that
his statement was meant to clarify the point that he has been not
motivated by the money throughout his career, and he does not consider
himself an ideologue.
Mr. Wolski has also been criticized about some of the clients that he
has represented. It is important to remember that the clients Mr.
Wolski has represented have been on both sides of the issues. He has
represented property owners in takings cases, but he has also
represented municipal and State governments. For example, he is
presently a member of the litigation team representing the State of
Nevada, Clark County, and the city of Las Vegas in their opposition to
the location of a nuclear waste repository at Yucca Mountain. He
represented a group of municipal governments challenging a commercial
development that would have caused environmental, traffic, and other
urban sprawl problems. So plainly, Mr. Wolski has represented a broad
range of clients, including some whom a die-hard conservative ideologue
would not represent. Instead, Mr. Wolski's clients indicate to me that
he has done his best to act as an advocate on behalf of his clients'
positions, regardless of his personal beliefs, just as every good
lawyer should do.
I know that some of my colleagues have expressed concern about Mr.
Wolski's brief in the case of Cargill v. United States. The first thing
that I want to point out is the obvious: Mr. Wolski was acting in this
case as a lawyer on behalf of his employer and had to perform his
duties as assigned to him. In this case, his job was to submit an
amicus brief. Second, it is important to note that Mr. Wolski was not
challenging Congress's ability to protect migratory birds in general.
Rather, his argument specifically addressed the scope of the Clean
Water Act, which does not incorporate findings about migratory birds.
Mr. Wolski clearly testified that he believes that the Clean Water Act
is constitutional.
Finally, in regard to Mr. Wolski's comments in the San Francisco
Examiner, I agree that they were a bit passionate, but Mr. Wolski's
hearing testimony reflects that he has matured in the 11 years since he
penned that letter. In fact, Mr. Wolski testified that he wrote that
letter before he worked as a congressional staffer. He testified that
had he worked on the Hill before he wrote that letter, he probably
wouldn't have written it at all. So I believe that this letter can
easily be chalked up to youthful indiscretion, and nothing more. I have
every reason to believe that, as a judge, he will act consistently with
his past practice by following the law regardless of his personal
beliefs.
Now, I would also like to take a moment to respond to some of the
allegations regarding the Court of Claims. It is clear that the Court
of Claims is a necessity, especially with the current backlog of cases
in our Federal district courts. The Court of Claims and the district
courts have overlapping jurisdiction. This allows the Court of Claims
to ease the heavy caseload in the district courts. As such, the Court
of Claims is a mainstay of the system.
A letter to the editor in the Washington Post on April 9, 2003, from
the president of the Court of Claims bar association made the point
well. He said that the docket of the court ``consists of more than
4,000 cases. Opinions by the judges are recognized as well-written and
well-considered and reflecting
[[Page S9085]]
of the complexity of the caseload. Those practicing before the Court
know that its judges are busy.'' This letter, drafted by a lawyer who
actually practices before the court, took direct issue with the Post's
recommendation to abolish the court, saying it ``missed the central
point.''
The editorial by Professor Schooner in the Washington Post on March
23, 2003, suggesting that the current cases pending before the Court of
Claims can be easily divided among the district courts is troubling to
me. Eliminating the Court of Claims would add nearly 5,000 additional
cases to the district courts at a time when they are unable to keep up
with the pace of cases being filed. Professor Schooner's academic
analysis also fails to take account of the considerable work and
learning that district judges do in order to handle complex patent,
antitrust, environmental or civil rights cases.
I must admit that I was surprised to learn how inaccurate the
statistics of my colleague from New York were after I did some research
regarding the caseloads of the Federal district courts and the Court of
Claims. These misleading numbers allege that the district court judges
have an average caseload of 355 cases per judge, whereas Court of
Claims judges would have an average caseload of 19 cases if the four
pending nominees were confirmed. After reviewing statistics from both
the Federal courts' legislative affairs office and the Court of Claims,
however, it is clear that Senator Schumer's figures are erroneous. If
we take the current caseload of the Court of Claims and suppose that
the court was at its fully authorized number of 16 judges, the average
caseload per judge would be 309. This is in sharp contrast to the 19 my
colleagues would have us believe and not much less than the average
caseload per district judge.
This campaign against Mr. Wolski and the Court of Claims is just the
newest tactic in an organized effort to prevent President Bush's well-
qualified judicial nominees from being confirmed and it must stop. It
is obvious to me that the criticism of the court's necessity is borne
more of political opportunity than any serious merit. We shouldn't be
in the business of creating more rationales for delay. The lack of any
functional problem in litigation between sovereign and citizen, or
problem with the court structure, makes the solution of elimination of
the Court of Claims a solution in search of a problem.
Mr. HATCH. Madam President, I rise today in support of Victor Wolski,
one of the four nominees for the Court of Federal Claims who have been
awaiting votes on their nominations by the full Senate since March.
When Mr. Wolski was first nominated to the Court of Claims in
September 2002, he joined three other well-qualified nominees to the
same court who had been pending even longer. Charles Lettow had been
nominated a month earlier, in August 2002, while Susan Braden and Mary
Ellen Coster Williams had been nominated, respectively, in May and June
2001. None of them received a hearing in the 107th Congress.
So I am pleased that we have at last reached an agreement for an up-
or-down vote on the nominations of Mr. Wolski and the other Court of
Claims nominees. But getting to this point was not simple. We had to
file a motion to invoke cloture on Mr. Wolski's nomination. Now, I am
pleased that our Democratic colleagues agreed to vitiate this motion.
But the fact still remains that we were almost forced to resort to a
cloture vote simply to secure an up-or-down vote on Mr. Wolski's
nomination. Mr. Wolski would have been the first Court of Claims
nominee in the history of the Senate to be forced through a cloture
vote. This would have been a historic but sad precedent that we came
dangerously close to setting. As I said, I am pleased that we did not
go down this path and that we are proceeding to an up-or-down vote on
Mr. Wolski's nomination.
Mr. Wolski will make a fine addition to the Court of Claims. His
nomination has bipartisan support, having been reported favorably to
the full Senate by all 10 Judiciary Committee Republicans and Senator
Feinstein. He is an accomplished trial attorney who has represented
clients on both sides of the issues, including a number of clients on
what many consider to be the so-called liberal side. For example, Mr.
Wolski has represented a group of municipal governments challenging a
commercial development that would have caused environmental, traffic,
and other urban sprawl problems. He presently represents a class of
Medicare beneficiaries who are suing the tobacco industry to try to
recover reimbursement to the Medicare system. And he represents the
State of Nevada, Clark County, and the City of Las Vegas in their
opposition to the location of a nuclear waste repository at Yucca
Mountain. Clearly, this is not the work of an ideologue but the work of
an accomplished lawyer who recognizes his duty to represent his
clients' interests to the best of his ability.
Mr. Wolski's breadth and depth of experience will be a true asset to
the Court of Claims. After graduating from the University of Virginia
Law School, Mr. Wolski clerked for Judge Vaughn Walker of the U.S.
District Court for the Northern District of California. He has a fine
record in public service, including 5 years as a litigator with a
public interest law firm. During his tenure there, he represented
clients in cases presenting significant issues of constitutional and
property rights law. He continued his public service by serving as
General Counsel and Chief Tax Advisor in the Congress with the Joint
Economic Committee for Senator Connie Mack. As the first person to
attend college in his family, Victor Wolski feels it is important to
give back to the community and felt a strong commitment towards the
public sector. This commitment is quite evident in his professional
background.
In 2000, Mr. Wolski transitioned from the public sector to private
practice, joining the prominent Washington, DC, law firm Cooper, Carvin
& Rosenthal. He now practices with its successor firm, Cooper & Kirk.
He has a reputation for being a thoughtful and hard-working legal
professional who will be a stellar addition to the Court of Federal
Claims, and I commend President Bush for nominating him.
Mr. President, we find ourselves at an important point. We have two
eminent and well-qualified circuit court nominees, Miguel Estrada and
Priscilla Owen, currently being blocked by a minority of Senators from
an up-or-down vote on the Senate floor. History will show that this
minority group of Senators was not asking for a full and open debate.
They were not asking for meaningful deliberation on these well-
qualified nominees. Rather, this minority group of Senators was
committed to subverting precedent and reworking the meaning of advice
and consent.
I think we can agree that the confirmation process is broken. I
certainly hope we can find a constructive way to restore the process,
but recent talk does not lead me to be overly optimistic--not when we
hear injudicious talk about plans for three, four, or more planned
filibusters. I hope that is not the kind of history we want to write.
Instead, I hope that my colleagues will see today's up-or-down vote on
Mr. Wolski's nomination as an opportunity to put a stop to the
obstruction and delay by giving all the rest of our nominees the
courtesy of a simple vote on their nominations. That is all we ask.
____________________