Jun 12, 2017 - On behalf of the Natural Resources Defense Council, I write to express our serious ... 1 Lou Dobbs Tonigh
June 12, 2017 Honorable Charles Grassley, Chairman Honorable Dianne Feinstein, Ranking Member Senate Judiciary Committee 224 Dirksen Senate Office Building Washington, DC 20510 Dear Chairman Grassley and Ranking Member Feinstein: On behalf of the Natural Resources Defense Council, I write to express our serious concerns with the nomination of Damien Schiff, a Senior Attorney with the Pacific Legal Foundation, to be a judge on the Court of Federal Claims. When his nomination comes before your committee, we urge you to explore these concerns vigorously. We urge the Committee to determine whether Mr. Schiff will act as an ideologue or an impartial judge on the bench. Mr. Schiff’s writings frequently attack and denigrate environmental safeguards and the citizens and agencies that seek to enforce them. This perspective, combined with indications that he may bring an extremely rigid judicial philosophy to the court, raises serious questions about whether he will fairly assess cases involving public health and environmental protections. Mr. Schiff commonly depicts public servants who implement regulatory protections as enemies of the public and individual freedom. Speaking of the Environmental Protection Agency, Mr. Schiff once remarked: “This is a problem with the agency across the board treating American citizens as if there [sic] were not American citizens, as if they were just slaves, and it's atrocious.”1 Similarly, earlier this year, Mr. Schiff wrote – in reference to the implementation of the Clean Water Act, the Clean Air Act, and the Endangered Species Act: “the sad reality is that, as a result of environmentalist litigation and agency misinterpretation, these statutes often are enforced not for the public's benefit but to stop productive activity that activists or bureaucrats dislike.”2 Mr. Schiff also consistently casts public interest groups dedicated to conservation as the antagonists of liberty, the Constitution, and progress. For instance, he alleged that “environmentalist extremists . . . push an agenda that has more to do with stifling productive 1
Lou Dobbs Tonight (Fox Business Network LLC Nov. 24, 2011), transcript available at http://www.afj.org/wpcontent/uploads/2017/05/Schiff-LouDobbs.pdf (last visited June 12, 2017) (interviewing Damien Schiff about the role of the Environmental Protection Agency). 2 Damien Schiff, Editorial, Environmental Law – A Good Place to Start for Trump to Make America Great Again, INVESTOR’S BUSINESS DAILY, Feb. 9, 2017, http://www.investors.com/politics/commentary/environmental-law-agood-target-for-trumps-efforts-to-make-america-great-again/ (last visited May 31, 2017).
human activity than fostering ecological balance,”3 and characterized efforts to save the polar bear as “the Extremists’ Latest Trojan Horse,”4 saying, “the cries to save the polar bear through the Endangered Species Act may be as much the attempt of environmental activists to impose their view of man's relationship to the earth on the American people through the courts as it is the fruit of a sincere desire to save a remarkably persistent Arctic mammal.”5 Mr. Schiff does not reserve his derision for government agencies and environmental groups, but extends it to laws Congress has adopted to protect the environment. He labeled the Endangered Species Act a “national quixotic effort to save all species, whatever the cost, however unattractive or evolutionarily expendable.”6 Similarly, he asked “[w]hat sense, then, does it make to…list[ ] more species, many of which are not endangered and many of which have little or no commercial or aesthetic value?”7 And Mr. Schiff refuses to engage with science, instead stating, “[w]e do not have the expertise to confirm or deny climate change.”8 These troubling views give us even more pause considering evidence that Mr. Schiff may take a dogmatic approach to the law, rather than assessing its application to individual cases. In 2007, Mr. Schiff wrote a scathing post on his personal blog, regarding a judicial term in which Justice Anthony Kennedy had joined the majority on nearly every decision. After labeling Justice Kennedy a “judicial prostitute,” Mr. Schiff suggested that “Justice Kennedy's toying or proclivity to concurrence-writing simply reveal[s] a chameleon mind, without mooring in the rule of law or other principles extrinsic to its own fancy.”9 Mr. Schiff likewise has advocated for an activist judiciary to implement his views. In particular, he wrote that “a reinvigorated constitutional jurisprudence, emanating from the judiciary, could well be the catalyst to real reform, as opposed to that reform coming from other branches,”10 specifically suggesting that “significant benefits” would come from the Supreme Court acting to “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.”11 Mr. Schiff’s arguments raise important questions about whether he intends to follow this perspective as a judge and whether he can faithfully implement precedents with which he plainly disagrees. 3
Damien Schiff, Editorial, Putting good sense on the endangered list, CASPER STAR-TRIBUNE, Sept. 28, 2009, http://trib.com/news/editorial/forum/putting-good-sense-on-the-endangered-list/article_d158df1c-2736-584d-872e3ba13bdaf5fd.html (last visited May 31, 2017). 4 Damien Schiff, Editorial, ‘Endangered’ Polar Bear Is Trotted Out As the Extremists’ Latest Trojan Horse, INVESTOR’S BUSINESS DAILY, Feb. 25, 2008, at https://www.pacificlegal.org/page.aspx?pid=3873 (last visited May 31, 2017). 5 Id. 6 Damien M. Schiff, The Endangered Species Act at 40: A Tale of Radicalization, Politicization, Bureaucratization, and Senescence, ENVIRONS ENVTL. L. & POL'Y J., SPRING 2014, AT 105, 110. 7 Putting Good Sense on the Endangered List, supra note 3. 8 Damien Schiff, The Danger of Climate Change Regulation, June 17, 2009, at http://blog.pacificlegal.org/thedanger-of-climate-change-regulation/ (last visited June 12, 2017). 9 Damien Schiff, Kennedy as the most powerful justice? OMNIA OMNIBUS, June 29, 2007, https://web.archive.org/web/20080610122330/http:/omniaomnibus.typepad.com:80/omnia_omnibus/2007/06/index. html (last visited May 31, 2017). 10 Damien M. Schiff, Federalism and the Separation of Powers, Day II, OMNIA OMNIBUS, May 18, 2008, https://web.archive.org/web/20081018211427/http:/omniaomnibus.typepad.com:80/omnia_omnibus/2008/05/index. html (last visited June 12, 2017). 11 Id.
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NRDC is disturbed by Mr. Schiff’s statements about laws that provide public protections, organizations that implement or enforce those safeguards (often in court), and the judiciary. We ask that you undertake a searching inquiry to determine whether Mr. Schiff can be trusted to fairly adjudicate matters involving these issues that come before him. Sincerely,
Jon P. Devine, Jr. Senior Attorney Water Program Natural Resources Defense Council
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