[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.

                          ____________________