Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On the Pending Nominees to the U.S. Court of Federal Claims

The United States Court of Federal Claims has been referred to as the “keeper of the nation’s conscience” and “the People’s Court.”  This court was created by Congress approximately 160 years ago and embodies the constitutional principle that individuals have rights against their government.  As President Lincoln has said, “It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.”  That is what this Court does – it allows citizens to seek prompt justice against our government.

The Court’s jurisdiction is authorized by statute, and it primarily hears monetary claims against the United States Government deriving from the Constitution, Federal statutes, executive regulations, and civilian or military contracts.  The fact that the Court of Federal Claims is an Article I court, as opposed to an Article III court, does not render any of the cases that it hears any less significant.

For example, the Court has presided over such important cases as the savings and loan crisis of the 1980s and the World War II internment of Japanese-Americans.  It also presides over civilian and military pay claims, and money claims under the Fifth Amendment’s Takings Clause. 

The Takings Clause under the Fifth Amendment of the U.S. Constitution provides: “nor shall private property be taken for public use without just compensation.”  As a result of this Court’s jurisdiction over takings’ claims, it considers cases such as the auto bailout suits against General Motors and Chrysler – companies who were required to terminate agreements with franchisees as a condition of receiving Federal bailout money.  The Court also resolves disputes that critically impact the environment and our economy, such as those involving the taking of wetlands to create solid waste landfills and disputes over water and drainage rights by agricultural landowners.  

Last week, the Chief Judge of the Court sent a letter informing the Senate that despite the court’s shortage of judicial officers, its caseload continues unabated.  She wrote that “[t]he statutory requirements dictating deadlines for certain types of cases unique to our court, including government contract disputes - some of which involve national defense and national security - remain in effect. The dollar amounts in dispute in our currently pending cases, which are often an indication of the complexity of the underlying issues, are in the billions of dollars. At least three different cases on the court's pending docket reflect a demand for damages greater than forty billion dollars.” 

This is no ordinary court.  The Senate Republicans’ insistence on delaying the confirmation of qualified nominees to the Court of Federal Claims harms its ability to resolve issues of national importance in a timely and just manner.  Since February 2013, the U.S. Court of Federal Claims has been operating with several vacancies.  Only 11 of the 16 seats on the court are occupied by active judges.

We could have a court working at full strength if we confirm the five pending on the Senate Executive Calendar.  All five of them were all nominated more than a year ago, and have twice been voted out of the Judiciary Committee by unanimous voice vote.  I have heard no objections to any of the five nominees to this court. There is no good reason to delay filling these vacancies. 

This is especially the case because the nominees before us are superbly qualified.  One of the nominees, Armando Bonilla, would be the first Hispanic judge to hold a seat on the Court.  He is strongly endorsed by the Hispanic National Bar Association.  He has spent his entire career – now spanning over two decades – as an attorney for the Department of Justice.  He was hired out of law school in the Department’s prestigious Honors Program, and has risen to become the Associate Deputy Attorney General in the Department.

Armando Bonilla’s story is that of the American Dream.  The son of a Cuban immigrant and Cuban-American father, Armando Bonilla has told the story of his mother’s flight from Havana with his aunt and his grandmother.  He has told the story of his “Tío Mario,” who eventually disappeared trying to help other exiles.  And he has told the story of his father, who dropped out of high school, but would subsequently serve the country by joining the Marines, and would ultimately take on several jobs to support Armando and his sister.  As Mr. Bonilla has beautifully described, his father “exemplified the most outstanding qualities of the Hispanic culture and Hispanic people: the selfless sacrifice, the steely resolve and unbridled optimism and the genuine pride in an honest day’s work – all toward the cause of improving the lives of the next generation.”  Mr. Bonilla should be confirmed without further delay.

Another nominee, Jeri Somers, retired with the rank of Lieutenant Colonel in the United States Air Force.  She spent over two decades serving first as a Judge Advocate General and then as a Military Judge in the United States Air Force and the District of Columbia’s Air National Guard.  In 2007, she became a Board Judge with the U.S. Civilian Board of Contract Appeals and currently serves as its Vice Chair.  

Armando Bonilla and Jeri Somers are just two of the five nominees that Senate Republicans have been obstructing.  These are two individuals that have done right every step of the way in their careers and are willing to serve on this important Court.  They have dedicated the majority of their careers in service to our nation.  They deserve better than the treatment they are receiving now.

During the Bush administration, the Senate confirmed nine judges to the Court of Federal Claims – with the support of every Senate Republican.  So far during the Obama administration, only three CFC judges have received confirmation votes.  That is nine CFC judges during the Bush administration to only three so far in the Obama administration. 

Unfortunately, the disparity in treatment of these nominees by Senate Republicans is not surprising.  More than half a year into this new Congress, the Republican leadership has scheduled votes to confirm only five district and circuit court judges.  This is in stark contrast to the 25 district and circuit court judges confirmed by July 13, 2007, when the shoe was on the other foot and Democrats had regained the Senate majority in the seventh year of the Bush administration. 

That’s 25 district and circuit court judges under a Democratic majority compared to 5 under the Republican majority.  That is five times as many judges confirmed under a Democratic majority with a President of the opposite party than today’s Senate Republican majority. 

It is up to the Majority Leader now to treat President Obama’s judicial nominees fairly. I ask that he schedule votes this week on the five Court of Federal Claims nominees pending on the Senate Executive Calendar.

I ask unanimous consent that a recent post to The Hill’s Congress Blog by Professor Carl Tobias on the need to fill the vacancies on U.S. Court of Federal Claims be included in the Record at the conclusion of my remarks.

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