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Lawyer Disputes Data Cotton Used to Block Judges

Lewis Wiener, a lawyer with long experience with the U.S. Court of Federal Claims, disputed Wednesday Sen. Tom Cotton’s data justifying his opposition to five judges awaiting confirmation to the court.

Cotton last week cited data about the court’s activity, saying it wasn’t busy enough to warrant five new judges, CQ reported Tuesday. The Arkansas Republican’s blocking of the five nominees leaves the court with an 8-3 balance in favor of Republican appointees. Senate Minority Leader Harry Reid, D-Nev., cited the story Wednesday on the floor in criticism of Republicans for not acting on judicial nominations.

Wiener weighed in on Wednesday. A lawyer at Sutherland, Asbill & Brennan, Wiener led the U.S. Court of Federal Claims Bar Association in 2002 and 2014. He wrote a letter to the Senate on Wednesday disputing the statistics Cotton used to make his point.

Wiener said that Cotton’s chart includes the wrong kind of cases, which magnified the apparent drop of work pending before the court.  Wiener said the caseload has generally been increasing under his count.

The number of cases steadily decreased while the court was functioning with its normal complement of 16 judicial officers, but has actually been increasing over the last two years while the court has been short-staffed, Wiener said.

“While statistics can be informative,” Wiener wrote, the work “cannot be simply captured by pending case statistics.”

The CQ story reported that Cotton’s former law firm, Cooper & Kirk, could benefit from the 8-3 balance. The firm promotes itself as the “go-to” firm for cases before the court and the firm’s employees gave significant political contributions to Cotton. The court hears many cases involving contract disputes with the federal government.

Cotton said on the Senate floor on July 14 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.”


An early version of this story failed to note that Cooper & Kirk is Cotton’s former law firm.