So far, the Trump Administration has largely chosen relatively young attorneys to name to the U.S. Court of Federal Claims (CFC), a specialized court focusing on claims against the U.S. government.  This hasn’t worked out too well for the Administration, which has been forced to withdraw two nominees due to bipartisan opposition, and has seen two more stuck.  As such, their latest nominee, Richard Hertling, can be seen as a bit of a retooling.  While Hertling possesses the requisite level of experience for the position, his long tenure in Washington may nonetheless open him up to attacks.

Background

Richard Alan Hertling was born in New York City on January 25, 1960.  Hertling graduated magna cum laude from Brown University in 1982 and from the University of Chicago Law School in 1985.[1]  After graduation, Hertling clerked for Judge Henry Politz for the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Hertling joined the Federal Programs Branch of the Department of Justice.  In 1990, he joined the House Judiciary Committee as Minority Counsel for the Subcommittee on the Constitution.[3]  Three years later, he became Minority Chief Counsel and Staff Director for the Subcommittee on Technology and the Law.  After Republicans took control of the House in 1994, Hertling became Chief Counsel and Staff Director for the Subcommittee on Terrorism, Technology, & Government Information.[4]

In 1997, Hertling moved over to the Senate to work for the Committee on Governmental Affairs as Chief Counsel.  Two years later, newly elected Republican Senator Peter Fitzgerald hired Hertling to serve as his Chief of Staff.[5]  He held this position until 2002, when he became Minority Staff Director on the Committee on Governmental Affairs.

In 2003, after a brief stint working for Sen. Lamar Alexander (R-TN), Hertling became Deputy Assistant Attorney General at the Office of Legal Policy.[6]  He became the Principal Deputy in 2005.

In 2007, Hertling moved to the Office of Legislative Affairs at DOJ, before leaving to join Friends of Fred Thompson, who was running for President.  In 2008, after Thompson’s loss, Hertling joined the House Judiciary Committee, where he stayed for the next five years.

Since 2013, Hertling has served as Of Counsel at Covington & Burling.

History of the Seat

Hertling has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Hertling was nominated for opened up on August 6, 2013, with the with the retirement of Judge George Miller.  On May 14, 2014, Jeri Kaylene Somers, a judge on the Civilian Board of Contract Appeals, was nominated for the vacancy by President Obama.[7]  Somers and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court in the 114th Congress, leaving six of the sixteen judgeships vacant.[9]

The Trump Administration nominated Damien Schiff, a Senior Attorney at the Pacific Legal Foundation, on May 8, 2017, to fill this vacancy.[10]  However, Schiff quickly drew fire for his controversial blog posts, including one where he referred to Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[11]  While Schiff’s nomination narrowly passed through the Senate Judiciary Committee, bipartisan opposition meant that the nomination lacked the votes to be confirmed.  As such, Schiff decided to withdraw after his nomination was sent back to the Administration at the end of 2017.[12]

For his part, Hertling reached out to the White House to express interest in a CFC nomination in February 2017.[13]  The White House reached out to confirm his interest in January 2018 (shortly after Schiff had withdrawn).  Hertling was nominated on May 7, 2018.

Legal Experience

Throughout his career, Hertling has built an extraordinary level of legal and policy experience, having spent almost twenty years on Capitol Hill working on Judiciary issues, as well as litigating with the Department of Justice and lobbying for DOJ and with Covington & Burling.  We’ve noted some highlights.

Department of Justice

Hertling had an initial stint at DOJ from 1986 to 1990, where he handled the government’s civil enforcement trials.  During that stint, he was involved in the defense of the Reagan Administration’s policies of random drug testing of government weather forecasters.[14]

During his second stint, Hertling served as the liaison between DOJ and Congress on a number of investigations led by Democrats in 2007.  For example, as Acting Assistant Attorney General for Legislative Affairs, Hertling was responsible for coordinating responses to Congressional oversight involving the Dismissal of U.S. Attorneys scandal.[15]  The scandal arose after the Bush DOJ dismissed several U.S. Attorneys in the middle of their terms and Democrats argued that the dismissals were made for “political reasons.”[16]  During his tenure, Hertling was forced to retract inaccurate testimony previously provided to Congress about the appointment of Tim Griffin to be U.S. Attorney for the Eastern District of Arkansas.[17]

Lobbyist

Since 2013, Hertling has worked as a lobbyist at Covington & Burling, focusing largely on representing interests before the House and Senate Judiciary Committees.[18]  Among the highlights of his lobbying, Hertling successfully advocated for the passage of the Defend Trade Secrets Act, which was signed by President Obama in 2016.[19]  The bill created a cause of action in federal court for the theft of trade secrets.  Additionally, Hertling has lobbied on behalf of a variety of organizations, business entities, and nonprofits, including Anheuser-Busch, Inc., Bacardi North America, Inc., Merck & Co., Inc., Microsoft Corp., and Samsung Electronics Co. Ltd.[20]

Political Activity

As noted above, Hertling served as Director of Special Projects and Legal Policy for the Fred Thompson for President campaign in 2007 and 2008.[21]  Other than this, Hertling has also been a prolific donor to Republican campaigns, having given over $14000 in contributions.[22]  Among the recipients of Hertling’s generosity are Sens. Ben Sasse, Marco Rubio, and Mitt Romney, as well as Rep. Barbara Comstock and Virginia gubernatorial candidate Ed Gillespie.[23]

Overall Assessment

So far, every single nominee put forward by the Trump Administration for the CFC has proven controversial.  While Hertling’s qualifications and experience is unquestionable, he may not escape this trend.  Specifically, Hertling is likely to be questioned on his time at the Department of Justice, and his role (if any) in providing inaccurate information to Congress during the investigation of the Dismissal of U.S. Attorneys scandal.

For his part, Hertling can argue that he is qualified to serve on the CFC, and that he deserves credit for correcting any inaccuracies in Congressional testimony during his DOJ tenure.

Ultimately, Hertling’s background and level of experience makes him almost overqualified for the CFC, especially compared to previous nominees like Schiff.  It is an open question as to whether Congress will disagree.

---