Zachary Somers – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations.  The nomination of Zachary Somers, who is a Senate staffer, may move faster, however.

Background

Zachary Noah Somers received a B.A. cum laude from Georgetown University and received a J.D. from Georgetown University Law Center in 2004.  After graduating, Somers clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.

After his clerkship, Somers joined the Washington D.C. Office of Marzulla Law, LLC, where he worked on takings and breach of contract claims.  He then became Counsel at the House Committee on the Judiciary, where he served for a decade.  

Chairman Lindsey Graham has hired Somers to be his Chief Investigative Counsel for the Senate Judiciary Committee, where Somers currently works. 

History of the Seat

Somers 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 are appointed for 15-year terms.  The seat Somers was nominated will open on October 23, 2020, with Judge Thomas Wheeler’s term coming to an end.

Legal Experience

Somers started his legal career clerking and then worked in litigation at Marzulla Law, LLC., a boutique law firm.  For example, while at the firm, Somers helped litigate a lawsuit involving a challenge to the federal government’s grant of federal trust to 6.9 acres of Indian land.[1]

For the last decade, Somers has been working on Capitol Hill, working as a Counsel for the House Committee for the Judiciary, and then for the Senate Committee on the Judiciary.  In the latter role, Somers led the Committee’s investigations of the Roger Stone arrest,[2] and of Secretary of State Hillary Clinton’s use of private email servers.[3]

Writings

In 2003 and 2004, Somers served as Editor in Chief for the Georgetown Journal of Law and Public Policy.  As Editor in Chief, Somers authored a preface to the Winter 2004 edition arguing that the journal should maintain itself as a forum for conservative thought and writings.[4] 

In another article in the same issue, Somers criticized the Supreme Court’s decision in Everson v. Bd. of Educ. that erected a wall of separation between church and state, arguing that such an interpretation violated the original understanding of the First Amendment.[5]  Instead, Somers argued for a return to the original understanding of the First Amendment, which limited the Establishment Clause to the federal government, and permitted state governments to involve themselves more closely in religious activities.[6]

Overall Assessment

Generally, senate staffers who are nominated for the bench are given a certain amount of deference, as they have worked closely with colleagues who need to approve their confirmation.  Somers should benefit from such deference.  While Somers is sure to attract opposition for his role in Senate investigations and for his writings, he will nonetheless likely be expedited through the process and be confirmed by the end of the year.


[1] Pres. of Los Olivos v. United States DOI, 635 F. Supp. 2d 1076 (C.D. Cal. 2008).

[2] See Press Release, Office of Sen. Lindsey Graham, Graham: FBI Needs to Brief Committee on Roger Stone Arrest, Jan. 30, 2019.

[3] See BFH, Strzok: Clinton, DOJ Struck Deal that Blocked FBI Access to Clinton Foundation Emails on Her Private Server, iOTWreport, Mar. 15, 2019.

[4] See Zachary N. Somers, PREFACE, 2 Geo. J. L. & Pub. Pol’y 1 (Winter 2004).

[5] Zachary N. Somers, The Mythical Wall of Separation: How the Supreme Court Has Amended the Constitution, 2 Geo. J. L. & Pub. Pol’y 265 (Winter 2004).

[6] See id. at 281-82.

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