Patients First Act of 2003 - Motion to Proceed

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED

NOMINATION OF VICTOR WOLSKI

Mr. SCHUMER. Mr. President, I will talk today about the nomination of Victor Wolski to the Court of Federal Claims. This nomination admittedly has not gotten much attention from our colleagues because the Court of Federal Claims does not handle the breadth or the number of cases that the courts of appeals do or even Federal district courts.

However, I remind my colleagues that in one area these courts are extremely important—they are important in many areas, but in one area where we have our usual ideological discussions and battles, the area of the environment. The Court of Federal Claims is the place where claims of takings reside. Takings have been the way many have opposed the advances we have made in the environment. They make their arguments this is a government taking from you your right to use your property as you see fit.

When the Government says you cannot pollute the water on the land you own or you cannot pollute the air on the land above which you own, some have come up with the theory that the Government is taking something from you. It is sort of denying the theory of compact that we all live together and we all have to be responsible for our land and our water.

I argue that the vast majority of Americans do not agree with this argument. However, there is a small group of people who tend to be propertied, tend to be quite well off in society, who are very much for this argument.

The nominee to the Court of Federal Claims, Victor Wolski, if we nominate him, if we approve him, we are approving somebody who has led the charge in this area—not somebody who sees some merit to the taking argument and sees the other side but somebody who is a committed ideologue, not somebody who would have the balance we need on the courts.

If anyone does not believe me, I take Mr. Wolski's own words to the National Journal:

Every single job that I have taken since college has been ideologically oriented trying to further my principles.
He then goes on to describe his principles as "a libertarian belief in property rights and limited government."

This man is a self-described ideologue. I thought we had been making some progress in this body, that while some would propose more conservative nominees and some would propose more liberal nominees, that it was a bad idea to put ideologues on the bench, ideologues of the left or the right.

Mr. Wolski is clearly an ideologue and does not belong on this sensitive court. For that reason, he is opposed by 13 national environmental groups. When he was counsel for the Pacific Legal Foundation, Mr. Wolski consistently furthered his ideology through sweeping arguments that would have dramatically undermined the Nation's environmental laws.

My guess is he preferred an America of the 1890s or the 1930s where our air was much dirtier, our water was much filthier.
Whether you are a Democrat or Republican, if you believe at all in preserving the environment, it would seem to me it would make a good deal of sense not to further this nomination. We can find people who might be more consistent with the President's views, with many views on the other side in terms of not extending environmental laws or making sure that the excesses of environmental laws are limited. Mr. Wolski is just not that. He is so committed to this ideological view that the Government has virtually no right to tell you you cannot pollute the air or the water, that if he had his way, we would turn the clock back dramatically in the environmental area. As a result, as I mentioned, 13 national environmental groups oppose his nomination.

In addition, a broad coalition of groups, civil rights, women's rights, human rights organizations, including the Leadership Conference on Civil Rights, the National Fair Housing Alliance, and the National Women's Law Center have expressed serious concerns with Wolski's "extreme views on governmental power and his troubling record in race and sex discrimination cases."

Admittedly, this court does not handle race and sex discrimination cases, but it does handle the takings cases that relate to our environment.

In addition, I argue to my colleagues, Mr. Wolski does not really have the judicial temperament to be a Federal judge. He argued a case where there were ponds that were providing habitat for migratory birds. I know from my own experience that some would think every piece of water, every pond and every lake is a wetlands and cannot be touched, and sometimes the advocates, I would be the first to say, go overboard. However, in this case, Mr. Wolski called ponds "puddles," and he belittled the possibility that there might be any interest in protecting migratory birds. "Jurisdiction over puddles was justified by the Ninth Circuit on the basis that birds might frolic in these puddles."

He wrote:

Will one fewer puddle for the birds to bathe in have some impact on the market for these birds?

In the argument he is making—I don't know, the facts of the case might be right—the language does not show the temperament, a fair and balanced temperament, that we seek in nominations to the bench, whether they be Democrat or Republican.

In a letter to the San Francisco Chronicle, Wolski derided what he called "a rogue Congress" and referred to the Members of Congress as "bums." Again, many of our constituents have hard words about Congress Members, but I don't think a lawyer, a trained advocate, ought to be using that kind of language. Again, it shows the kind of temperament Mr. Wolski has.

On the merits of his views, he is way over to the extreme. On his judicial temperament he has used incendiary language that is inappropriate for a lawyer or a judge. Mr. Wolski should not be put on the bench.

I make one other argument in this regard. The Federal Court of Claims has some vacancies. It has 16 slots. It now has 13 senior judges in addition to the 11 regular judges. This court does not have much of a caseload. The average number of cases the United States District Court judge handles is 355 cases; the number of cases a current judge of the Court of Federal Claims handles is 24. If we add the new nominees, each will handle 19 cases.

Let's say you don't agree with CHUCK SCHUMER on the environment. Let's say you even agree with Victor Wolski, but you are a fiscal conservative. Why are we adding more judges to a bench that does not need any help?

The Washington Post editorial—and, as you know, the Washington Post on the issue of judges has not agreed with many of
us on this side—called the CFC:
    .    .    . a court of extravagance and an unnecessary waste of judicial resources that should be abolished.
    Each of these judges costs a million dollars. I would say to my colleagues, those on the other side of the aisle did not allow nominees to the Court of Federal Claims when President Clinton was in office because, they said, the caseload was too low. Today the caseload is even lower, and there is a rush to nominate. This should not be dispositive.

    If Wolski were a good man, if the caseload were growing, I would support him no matter what was done between 1995 and 2000. But I have to tell my colleagues on the other side, it is extremely galling to us that the very arguments that have been used in the past now seem irrelevant, now that there is a new President making different appointments. If the Court of Federal Claims should not have had appointees under the Clinton administration and the Republican-controlled Senate did not allow any because the caseload was too low—24—why are we now nominating 4 and bringing the caseload down to 19? It is just not right. It is not fair. There ought to be some consistency to the argument. There is not. There absolutely is not.

    So for these grounds, I urge Mr. Wolski's defeat. No. 1, he is a good man—he may be a good man, I don't know him personally, but when I said "a good man" before, I did not mean in terms of his views for this court. He is an extremist. By his own words, he is an ideologue. He does not believe in the progress we have made on the environment.

    If the President wishes, as our great process unfolds, to nominate somebody who would cut back a little bit on the environmental laws, or not make decisions that move them forward, that is a fair and legitimate argument. To nominate an ideologue—a self-admitted ideologue who has made it his career to say that anytime the Clean Water Act or Clean Air Act has effect, it often means it is a taking—is really not what the American people want. My guess is maybe half of the people on this side of the aisle, on the Republican side of the aisle, do not agree with these views at all—in terms of their voting record.

    His temperament is poor. He uses inflammatory and derogatory language. That makes sense, in a certain sense—that when you nominate ideologues, they are not dispassionate. They are not going to interpret the law, which is what the Founding Fathers wanted; they are going to make law. I have rejected nominees from the left in my own judicial panel because they are ideologues, too, and they want to make law. We want judges to interpret the law. Those far right and those far left tend to want to make law. On temperament and ideological grounds, he is not the right man for the job.

    One other argument to boot. Even if you think he is the right person for the job—and I argue, I plead with you to think otherwise—this court has no caseload. This court could handle many more cases without an additional new judge. This is a total boondoggle. This is a waste of the taxpayers' money. If it was right that this court did not have the caseload under the Clinton administration so we would fill the vacancies, with the caseload even lower today, why are we doing that?

    I respectfully urge my colleagues to vote no on Victor Wolski.

    Mr. President, how much time do I have remaining?

    The PRESIDING OFFICER. The Senator has 12 minutes.

    Mr. SCHUMER. I yield the remainder of my time to my colleague, the Senator from Illinois.

BREAK IN TRANSCRIPT

Mr. SCHUMER. Mr. President, I want to repeat the arguments against Mr. Wolski. Something new has happened since I spoke an hour ago. The AFL-CIO has come out against him, which is understandable, because of his ideology.

Mr. Wolski should be defeated for two reasons. First, he is an ideolog. This important court, when it comes to the environment, does not deal with much else we would care about, other than just claims issues, and we should not have somebody who is a self-described ideolog. Let me repeat that Victor Wolski, in his own words, said every single job he has taken since college has been ideologically oriented, trying to further his principles, which he describes as a libertarian belief in property rights and limited government.

I do not think the Founding Fathers intended judges to be ideologs. That is why they have us advise and consent, so that if a President, as this President does, sees judges through an ideological prism and does not nominate moderates—I do not like judges far right or far left—when he nominates them, we can be the check. We have used that power judiciously. We have defeated or filibustered only two of the 134 nominees the President has made.

This man deserves to be defeated. He is an ideolog, way over. If my colleagues believe we have made advances in clean water and clean air, his theory is that any type of environmental law is a taking, which denies the compact on which we all live: That if someone lives upstream on a river from somebody else, they do not have the right to dirty that river and foul the water of the person who lives downstream. If someone lives 100 miles east and they own a factory where the winds blow in that direction, they do not have a right to spew SO2 and NO2 in the air and foul the lungs of people who live downwind.

Mr. Wolski does not believe in that. He says if someone has the money and can build the plant, go build it. That is the core of his beliefs in terms of takings. So he is an ideolog. He does not have the temperament for the bench, as mentioned. He said that Members of Congress were, and this is his word, bums. If he does not like us, he has a right to denounce us, but that is not the kind of word of a person we want to see as a judge.

Just as importantly, whatever one's views on Wolski, this is a boondoggle, a waste of money. The average number of cases a court of appeals judge handles is 355. The Court of Federal Claims handles 24. If we add these judges, it will go down to 19—a million-dollar boondoggle.

The Washington Post, in an editorial, called it the "Court of Extravagance." When President Clinton was President, Members of the other side refused to fill these vacancies, stating there were too few cases and too small a workload. Well, the workload is even smaller and we are nominating four judges. We do not have money for all of what we are talking about—prescription drugs health care, education—and we are doing this. It is wrong. It is hypocritical of those who have said in the past that this court should not be filled, because it has such a low caseload, to fill it now.

I urge Mr. Wolski's nomination be defeated.