Cotton Blocks Judges on Court Familiar to His Former Law Firm

Posted July 21, 2015 at 9:13am

Arkansas Republican Sen. Tom Cotton blocked five of President Barack Obama’s judicial picks for an often overlooked federal court, a move that lines up well with the interests of one of his old law firms.

Cotton, ignoring a plea from the chief judge of the Court of Federal Claims, objected on the Senate floor last week to a Democratic request to allow confirmation votes for five nominees to that court. Those judges hear disputes about government contracts and tax refund suits.

Conservative law firm Cooper & Kirk, where Cotton worked in 2004, sells itself as the “go-to firm” to sue the government in the biggest of cases and is currently representing several clients in cases before the court. The firm’s employees were contributors to Cotton in 2012 and in 2014, making about one third of their total campaign contributions in 2014 to Cotton.

Interests align in other ways for the conservative Cotton, Senate Republicans as a whole, and the boutique law firm. The court now is lopsided with Republican appointees: eight Republicans to three Democrats. That includes a former Cooper & Kirk attorney, Victor Wolski, whose time at the firm coincided with Cotton’s.

Republican judges are considered to be generally more pro-business and more pro-free market property rights, and therefore more likely to rule against government and award large damages. Adding the five appointees would even the balance on the court to 8-8, giving Obama’s judicial picks more sway.

Cotton said on the floor July 14 that the Federal Claims court’s workload doesn’t justify five more judges, which would give the court its full allotment of 16.

The chief judge of that court, however, disagreed in a letter to the Senate that urged  reinforcements for the current 11 judges. The current judges face unrelenting deadlines for cases unique to that court — some of which involve national defense and national security — and the cases are complex and time-consuming, Chief Judge Patricia E. Campbell-Smith wrote to Senate leaders.

“It certainly has an appearance of conflict of interest,” said Craig Holman, government affairs lobbyist for Public Citizen. “If anyone knows the court is sufficiently staffed it would be the court itself.”

Cotton said on the Senate floor that the Federal Claims court had 2,528 cases on its docket in 2014, which is 68 percent fewer than in 2007. That makes it hard to justify adding $800,000 in judicial salaries to the court, he said.

“The bottom line is that there is no caseload crisis at the Court of Federal Claims,” Cotton said. “If anything, there is a caseload shortage. It therefore makes no sense to spend more taxpayer dollars on judges that the court simply does not need.”

“As someone who has practiced at the Court of Federal Claims myself many moons ago when I was a lawyer, albeit not a very good one, I know the caseload there has always been complex,” Cotton said. “And I simply think the judges who are at the court are ready, willing, and able to handle the court’s work.”

Kyle Barry of the progressive group Alliance For Justice said he doesn’t think those reasons are persuasive. And he said it is reminiscent of the end of 2013, when Republicans made similar caseload arguments when opposing Obama’s picks for the influential federal appeals court in Washington, D.C. That opposition eventually led Democrats to change the Senate’s rules to make it easier to overcome a minority party’s filibuster of judicial nominees.

“It’s over-simplistic to cite numbers of cases and use that as a basis to argue why there’s not a need for more judges on the court,” Barry said.

Caroline Rabbitt, a spokeswoman for Cotton, reiterated to CQ how the senator objected based on cost and caseload. She didn’t say whether he discussed the issue with Cooper & Kirk. “As for opposition from other senators, you’ll have to take that question up with them,” she said.

Holman said the makeup of the court strongly suggests Cotton is delaying and perhaps undermining appointments to the court for partisan reasons.

Cooper & Kirk did not immediately respond to questions about this story.

Billions are in the balance in the Federal Claims court lawsuits that sometimes get to the Supreme Court. But the cases are contract disputes that affect big businesses and lack the cultural and constitutional issues that make other courts more high-profile.

In the court, for example, Cooper & Kirk represents Harbinger Capital Partners, which says Congress passed a law forbidding the firm from using a multiple billion-dollar nationwide cellular network built in reliance on a government contract. Earlier, the firm represented United Launch Alliance in a challenge to the Air Force’s award to SpaceX of a five-year, $11 billion contract for 27 rockets to launch national security satellites.

Close Ties

Employees of Cooper & Kirk, including founding partner Charles J. Cooper and managing partner David Thompson, combined to give Cotton $12,250 in the 2014 election cycle, during his bid to become a senator. That was more than a third of all giving for the firm’s employees that election, and more than they gave any other candidate. The firm’s employees gave him $13,350 in the 2012 election cycle when he ran for the House and won.

Cooper is an insider with conservative lawmakers. Among other high-profile cases, he defended Proposition 8 before the Supreme Court in 2013, and his firm was counsel on amicus briefs for Republican lawmakers in the latest challenge to the health care overhaul law (PL 111-148, PL111-152).

Sen. Chris Coons, D-Del., sought unanimous consent July 14 for a vote on the five nominees, who were nominated 15 months ago to serve 15-year terms on the court. The nominees themselves are not controversial.

Cotton’s objection to Coons’ request means the nominations are stuck.