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Politics came to the relatively obscure world of the U.S. Court of Federal Claims last week. Late on the afternoon of May 13, news began to spread among the staff and then among the tightly knit bar of the claims court that a new chief judge had taken over. In a little-noticed action earlier that day, President George W. Bush had designated Judge Edward Damich as head of the specialized federal trial court. As chief, Damich replaces Lawrence Baskir, who remains on the court. The decision made eminent political sense. Damich, 53, is a former intellectual property counsel to Sen. Orrin Hatch, R-Utah, while Baskir, 64, is an active Democrat and a former top aide to then-Sen. Bill Bradley, D-N.J., who hobnobbed with the Clintons at Renaissance Weekends. Nevertheless, even some practitioners who follow the claims court were perplexed at first to learn that the president had stripped a sitting judge of his post as chief and awarded the job to another judge on the court. After all, the president can’t do that for a federal district or circuit court. And no president had taken such a step in the 20 years since the claims court was established in its current form by Congress. But the statute that establishes the claims court clearly gives the president this power. “It’s simply the changing of the guard, politics as usual,” says an administration source. Not everybody sees it quite that way. Douglas Kendall, executive director of the liberal Community Rights Counsel, says the most important aspect of the Damich selection is that it “shows that the Bush administration is very focused on the claims court in a way that the Clinton administration didn’t seem to be.” Kendall points out that a chief judge can set the tone for the court as a whole, can assign cases to senior judges, can speak out in favor of expanding the court’s jurisdiction, and can fend off attempts by Congress to diminish the court’s sway. Former Chief Judge Loren Smith “was a genius at advancing the power of the court and its judges,” Kendall says. Smith, a Ronald Reagan appointee, served as chief judge for the full 15 years from his appointment in 1985 to his move to senior status in 2000. Although President Bill Clinton could have taken away Smith’s chief judgeship and named someone else as chief, he never did. Some observers say the decision not to remove Smith was a gesture of bipartisanship and an attempt to reach out to Hatch. Others think it was an indication that the Clinton administration did not care enough about judgeships to put its stamp on the claims court. But when Smith went senior, Clinton named Baskir to the chief spot. Both Damich and Baskir are serving 15-year terms. They were named to the court in 1998 by Clinton as part of a deal with Hatch, then Judiciary Committee chairman, to break a nominations logjam. At the time, six new judges were confirmed for the court. FROM TAKINGS CASES TO ‘WINSTAR’ While last week’s switch is novel, one lawyer who practices frequently before the court says, “The only thing I’m surprised by is the fact that it took the president so long to do it. It’s clearly a prerogative of the president, and one that you’d expect him to exercise.” Perhaps this delay is not so surprising, since the claims court has a relatively low profile. But the court’s docket is increasingly important. It includes a wide variety of cases filed against the United States that can be worth billions of dollars and have major political ramifications. Defense procurement controversies tend to land there, as do claims of government “takings” of private property, an issue that has become a crusade for conservative activists battling land use and other laws. Intellectual property cases also form a significant portion of the court’s work, as do the so-called Winstar cases involving huge contract claims against the government growing out of the 1980s savings-and-loan bailout. Damich, who has published widely on copyright law and has taught intellectual property at George Mason University School of Law, gets good reviews from practitioners. Lewis Wiener, the president of the Court of Federal Claims Bar Association, says Damich is “an admirable pick” who is “intellectually aggressive and very energetic.” Wiener is counsel at the Washington, D.C., office of Sutherland, Asbill & Brennan. Kendall, whose group takes the side of government agencies that oppose takings claims, says Damich “hasn’t been aggressive with takings rulings to date. His record is not particularly disturbing.” Last year, in a case with an unusual twist on the takings issue, Damich rejected a claim by owners of cigarette vending machines that they should be compensated for a taking of their property after the Food and Drug Administration issued regulations that limited where the machines could be located. Damich held that since the FDA action was later found by the Supreme Court to be outside the scope of the agency’s powers, there was technically no taking under the Fifth Amendment for which the companies could be compensated. A year ago, Damich was suggested to President Bush by the bar association of the U.S. Court of Appeals for the Federal Circuit for possible elevation to that bench, which hears appeals from the claims court. Sharon Prost, then a Hatch aide, got the nod instead and was confirmed last year. Some court-watchers believe that Hatch, who has a strong record of getting federal judgeships for his aides, lobbied the White House heavily for Damich’s appointment as chief judge. Hatch press secretary Margarita Tapia says, “We did give him a high recommendation to the White House, based on his ability, as did many other Republicans and many Democrats.” Assistant White House Counsel Rachel Brand declines comment except to say, “We are confident about [Judge Damich's] qualifications.” Damich did not return a call for comment. Baskir declines comment. One thing that may be at the top of Damich’s agenda as chief is getting the Democratic Senate to focus on confirming the president’s pending nominees to the claims court. The court is authorized to have 16 judges. It now has 12, but one, Judge Sarah Wilson, was a Clinton recess appointment whose term will end at the end of this Congress. There are five Bush nominees, four of whom were nominated more than nine months ago. None has yet had a hearing. They are Mary Ellen Williams, an administrative judge on the General Services Administration Board of Contract Appeals; Lawrence Block, a Hatch aide on the Judiciary Committee; Marian Horn, a former claims court judge whose 15-year term recently expired; Charles Lettow, a partner in the D.C. office of New York’s Cleary, Gottlieb, Steen & Hamilton; and Susan Braden, of counsel at the D.C. office of Baker & McKenzie.

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