Stephen S. Schwartz – Nominee to the U.S. Court of Federal Claims

Two months ago, I wrote on Damien Schiff, a nominee for the Court of Federal Claims (CFC).  Specifically, I called out Schiff’s youth, noting that he was only 38, and had spent less than thirteen years in practice.  Steven S. Schwartz, Trump’s second nominee for the CFC, has even less experience, having been out of law school for less than ten years.  

Background

Stephen S. Schwartz received a B.A. with Distinction from Yale University in 2005, and immediately proceeded to the University of Chicago Law School, graduating with a J.D. in 2008.[1]  After graduating, Schwartz clerked for conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.

After his clerkship, Schwartz joined the Washington D.C. Office of Kirkland and Ellis as a litigation associate.  After five years there, Schwartz was hired as Counsel at Cause of Action, a public interest law firm focused on FOIA and administrative law suits against the federal government.  

In November 2016, Schwartz left Cause of Action to become a partner at Schaerr Duncan LLP., a D.C> Boutique Litigation firm, that, among other matters, represented Sen. Ted Cruz in the challenge to his eligibility to run for president.  

History of the Seat

Schwartz 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 Schiff was nominated for opened up on October 21, 2013, with Judge Lynn Bush’s move to senior status.  On April 10, 2014, Thomas Halkowski, a Principal in the Delaware office of Fish & Richardson, P.C. was nominated for the vacancy by President Obama.[2]  Halkowski 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.[3]  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, leaving six of the sixteen judgeships vacant.[4]

Legal Experience

From 2009 to 2015, Schwartz served as a litigation associate at Kirkland & Ellis.  In this capacity, Schwartz represented large companies in trials and appeals in federal court.  For example, Schwartz was part of the legal team for UBS Securities LLC in a case involving alleged violations of the Georgia Racketeering Influenced and Corrupt Organizations Act.[5]  Schwartz also joined noted advocate Christopher Landau in an unsuccessful appeal of a jury award against Avis Budget Group Inc.[6]

In 2015, Schwartz moved to Cause of Action, challenging agency determinations that he considered abuses of discretion. During the transition, Schwartz was part of the legal team challenging FDA interpretations of exclusivity rights on behalf of pharmaceutical companies.[7]  He also represented a franchise charged with wage and hour violations by the Department of Labor.[8]

Overall Assessment

Like Damien Schiff before him, Schwartz comes from a background of legal resistance to agency determinations.  However, unlike Schiff, Schwartz does not have a long record of inflammatory blog posts.  As such, it is unlikely that Schwartz’s nomination will attract the same intensity of opposition that Schiff has.  If opposition gathers, it will be based on his youth and inexperience, rather than his political opinions.


[2] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[3] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[4] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[5] See Raser Tech. Inc. v. Morgan Stanley & Co. LLC., 2012 U.S. Dist. LEXIS 189209 (N.D. Ga. Oct. 30, 2012).

[6] Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872 (9th Cir. 2013).

[7] Mylan Pharmaceuticals, Inc. v. United States Food & Drug Admin., 23 F. Supp. 3d 631 (N.D.W.V. 2014), rev’d, 594 Fed. Appx. 791 (4th Cir. 2014).  

[8] Rhea Lana, Inc. & Rhea Lana’s Franchise Systems Inc. v. Dep’t of Labor, 824 F.3d 1023 (D.C. Cir. 2016).

Damien M. Schiff – Nominee to the U.S. Court of Federal Claims

Among the ten nominees that Trump jointly named on May 8, Damien Schiff stands out for his relative youth.  Schiff is only thirteen years out of law school, and has spent virtually his entire legal career in one position: working for the libertarian Pacific Legal Foundation.  Even though Schiff has not been named to a lifetime appointment, his youth, in addition to his political background, and some inflammatory writings, may create resistance to his nomination.

Background

Damien Michael Hennessy Schiff was born in San Jose, California in 1979.  After getting a B.A. from Georgetown University and a J.D. from the University of San Diego Law School, Schiff clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.  

After his clerkship, Schiff joined the Pacific Legal Foundation as a staff attorney.  Other than a brief stint as counsel at Alston & Bird LLP., he has worked at the Pacific Legal Foundation ever since, becoming a Senior Staff Attorney in 2011, a Principal Attorney in 2012, and a Senior Attorney in 2017.  

In February 2017, Schiff reached out to the White House Counsel’s Office, indicating his interest in an appointment to the Court of Federal Claims.  After follow-up interviews with the Counsel’s Office and the Department of Justice, Schiff was nominated on May 8, 2017.[1]

History of the Seat

Schiff 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 Schiff was nominated for opened up in August 2013, with the retirement of Judge George W. 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.[2]  In February 2015, Somers and four other nominees to the Court were approved by the GOP-led 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.[3]  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, leaving six of the sixteen judgeships vacant at the inauguration of the Trump Administration.[4]   Schiff is the first nominee Trump has put forward for the CFC.

Legal Experience

From 2005 to 2017, Schiff served as an attorney for the Pacific Legal Foundation, a public interest law firm that litigates cases involving public interest takings, property rights, and environmental regulation.  Schiff focused most of his career on the latter, litigating and advocating against environmental regulations.

Schiff was the counsel of record in Sackett v. EPA, a case clarifying whether compliance orders issued by the EPA were subject to judicial review under the Administrative Procedure Act.[5]  The Sacketts, an Idaho couple, were issued a compliance order under the Clean Water Act by the EPA, for filling in wetlands to build a home.  The Sacketts sought to challenge the jurisdictional basis of the compliance order, but were ruled against by the trial court and the Ninth Circuit.  The Supreme Court, in an opinion by Justice Scalia, unanimously reversed, holding that the Sacketts had the right to challenge the compliance orders.[6]

Schiff has represented both governmental and business plaintiffs in challenging state and federal environmental regulations.  Schiff unsuccessfully argued to overturn a veto by the Bush EPA of a proposed flood control project that would lead to the discharge of pollutants.[7]   Schiff also unsuccessfully challenged the EPA’s designation of critical habitat for 18 vernal pool species.[8]  He also unsuccessfully challenged California’s designation of two salmon species as endangered.[9]

While the bulk of Schiff’s legal experience has been focused on environmental law, he also successfully challenged a local campaign finance initiative that banned non-local corporations from spending money in county elections.[10]

Speeches and Writings

From 2007-2009, Schiff maintained a personal blog titled Omnia Omnibus.  In this forum, Schiff discussed his views on public policy, politics, and the law, generally from a religious lens.  For example, in one post, Schiff suggests that, for Catholic voters, a candidate’s view on abortion should generally trump other social and moral issues.[11]  In another, Schiff describes the nomination of the Catholic (but pro-choice) Tom Daschle to be Secretary for Health and Human Services as a “poke in the eye to the [Catholic] bishops.”[12] 

The blog also lays out many strongly religious political views.  In one post, Schiff defends the right of Catholic universities to ban pro-choice speakers and viewpoints from campus.[13]  In another, Schiff argues that public schools should not teach students that homosexual families are the “moral equivalent of heterosexual families.”[14]  In this post, Schiff goes on to state that he would have objected to the teaching of an anti-racism curriculum in 1950s Arkansas.[15]  He goes onto advocate allowing parents to stop paying taxes to public schools, noting: “Why should folks have to pay for somebody else’s education, or for facilities that they themselves do not use?”[16]

One of Schiff’s blog posts has already drawn significant attention in the media.  In a blog post from June 29, 2007, Schiff describes Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[17]  While the language was used in criticism of Kennedy’s swing-vote status, its intemperate wording has already drawn criticism from liberal groups.[18]

Overall Assessment

If Schiff had been named to a lifetime appointment, rather than to the CFC, his writings and background would have guaranteed an explosive confirmation fight.  In fact, given the blue slip rules, it is unlikely Schiff would have been approved to a seat on the federal bench in California (where he resides).  Given the CFC’s limited jurisdiction, it is possible that Senate Democrats may choose to save their powder, and focus on fighting Article III appointments.  

That being said, Schiff’s confirmation to the CFC could nonetheless open up a lifetime appointment.  Judge Alex Kozinski of the Ninth Circuit and former Judge Randall Rader of the Federal Circuit both served as CFC judges before their appellate appointments.  At 38, Schiff is young enough to be elevated in a few years to an appellate court, and potentially even further.  

As such, it is incumbent on the Senate Judiciary Committee to carefully probe Schiff’s writings, and ensure that his strongly held political views would not affect his rulings as a judge.  It also falls upon Schiff to clarify some of the more aggressive opinions he has taken, particularly his reference to Justice Kennedy as a “judicial prostitute.”  After all, every litigant, regardless of whether they are before the Supreme Court, or the CFC, deserves an impartial and qualified judge.


[1] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[3] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[4] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[5] Sackett v. EPA, 132 S. Ct. 1367 (2012).

[6] Id.

[7] Bd. of Miss. Levee Comm’rs. v. EPA, 674 F.3d 409 (5th Cir. 2012).

[8] Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010).

[9] Cal. Forestry Ass’n v. Cal. Fish & Game Comm’n, 68 Cal. Rptr. 3d 391 (2007).

[10] Mercer, Fraser Co. v. County of Humboldt et al., No. C 08-4098, 2008 WL 4344523 (N.D. Cal. Sept. 22, 2008).

[11] Damien Schiff, Chaput on Obama, Omnia Omnibus, Oct. 20, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1511.pdf.

[12] Damien Schiff, Daschle at HHS?, Omnia Omnibus, Nov. 19, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1503.pdf.

[13] Damien Schiff, Unknown Title, Omnia Omnibus, Unknown Date, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[14] Damien Schiff, Teaching “Gayness” in Public Schools, Omnia Omnibus, May 17, 2009, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[15] Id. (“…not that I approve of racism, but that, as a prudential matter, the best way to get people to drop their racist views would not be to force the teaching of their children.”) (emphasis in original).

[16] Id.

[17] Seung Min Kim, Trump Nominee Called Kennedy Judicial Prostitute, Politico, May 26, 2017, http://www.politico.com/story/2017/05/26/trump-judicial-nominee-justice-kennedy-slight-damien-schiff-238874.

[18] Id. (Quoting Nan Aron) (“Mr. Schiff clearly lacks the judicial temperament necessary to be a judge…”).