The Court Conjurer: This jurist, who often uses magic to make a point, is not your typicalchief judge. And he has performed no small trick in bringing the U.S. Court of FederalClaims to growing prominenceAuthor(s): TERRY CARTERSource: ABA Journal, Vol. 83, No. 12 (DECEMBER 1997), pp. 72-75Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840153 .

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This jurist, who often uses magic to make a point, is not your typical chief judge. And he has performed no small trick in bringing the

U.S. Court of Federal Claims to growing prominence.

BY TERRY CARTER

Loren A. Smith can easily look the part of a jocular prankster. He's built like a retired line

backer making the after-dinner circuit and he sometimes seems to be wearing those fake glasses with their own nose, eyebrows and mus

Te rry Carter is a reporter for the ABA Journal.

tache?except it's his own, very or

dinary nose.

The effect seems perfect when he holds a rolled diploma over his head at commencement speeches,

declaring a law degree to be a pow erful thing?and on cue it explodes, sending streamers and confetti 40 feet into the air. Or when he uses a

telescoping gavel that stretches twice arm's length from lecterns. Or when he calls law clerks to the

fronts of packed banquet rooms and "severs" their hands with a small trick guillotine.

The illusion of who Smith ap pears to be is also perfect. After all, who would think this is the chief

judge of the U.S. Court of Federal Claims?

Despite his playfulness, no one mistakes Smith for a clown. And at the court in Washington, D.C., which hears monetary claims against the

72 ABA JOURNAL/ DECEMBER 1997 ABAJ PHOTOS BY RICHARD NOWITZ

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federal government, he is wide ly considered to be a magician for less theatrical reasons.

Since he was appointed by President Reagan in 1985, Smith has brought the rather obscure court to some promi nence both within the federal judiciary and outside it.

As chief judge of a court created by Congress in 1982 pursuant to its powers under Article I of the Constitution, Smith has been the driving force in efforts to gain stat ure for its 16 judges?trans lated into pay and tenure? that measures at least some what favorably against the federal courts created with the broader powers conferred by Article III.

At the same time, the court has served as a spring board for Smith to assert his jurisprudential leadership in a fast-growing, largely liber tarian movement in takings law, trying to put Fifth

Amendment property rights on par with First Amendment speech rights.

Smith's often controver sial decisions in takings law, particularly the type of regu latory takings that amount to inverse condemnations, have been holding up in the U.S. Court of Appeals for the Fed eral Circuit, which hears the appeals of decisions by the Federal Claims Court and shares quarters with it across from Lafayette Park near the

White House. Under Smith, the Court of Federal Claims

may be nudging the Supreme Court, as well.

Yet Smith does not consider his judicial thinking all that origi nal. "I've thought of my takings de cisions as common sense, not rocket science," he says. "When people have something and you take it away, the Fifth Amendment has one sentence that says you pay for it. I don't think it's a particularly novel idea, but for some reason not until recent years has it been appreciated."

Smith explains his thinking this way: "Long before I came to the court, I thought liberty and proper ty were the two fundamental pur poses of the Constitution, and that they would make the third part of the trinity?life?worth living."

His scholarly work and judicial

opinions in the takings field have made Smith a darling of conserva tive members of Congress, who re cently brought him to Capitol Hill to testify before committees craft ing property rights legislation, in cluding some measures that would increase his court's jurisdiction.

Coincidentally, President Clin ton has nominated Lawrence M. Baskir, principal deputy general counsel for the Department of the Army, to replace Smith as chief judge, though that bid has stalled.

What has not stalled is the 53 year-old Smith's tireless blend of chutzpah, savvy and hard work to build up the Court of Federal Claims and build on his takings ju risprudence.

Even his critics recognize that drive. "He believes in the importance of the court and in his judicial phi losophy," says one environmental lawyer who has tried several cases in the court. "I just wish he weren't so damned charming."

After 12 years as chief judge, Loren Smith in many ways is the U.S. Court of Federal Claims.

He certainly has made over his chambers in his own image. Smith's offices are renowned for sprawl ing piles and pockets of nonjudicial clutter?trinkets, gadgets, memen tos of his very brief stint on the

Nixon legal defense team during Watergate and his days as counsel to Reagan's 1976 and 1980 presi dential campaigns, baubles, magi cian's props, humidors of fine cig ars, and whatever else his pack-rat eclecticism fancies including big, fluffy bedroom slippers in the form of stuffed elephants. On the walls are the politician's usual photos of himself with important people.

Smith is one of those people who seems to eschew sleep, given the variety and extent of his activ ities. For one thing, he's the mover and shaker behind the monthly PCPs: Port, Cigars and Politics gatherings in the old, wood-paneled, clubby atmosphere of the Universi ty Club, next to the Russian Em bassy. There, Smith moderates a panel he handpicks from the left and right around town to discuss current events and politics, blend ing humor and substance with the cigar smoke and libations.

Colleagues point out that Smith is not given to gamesmanship. What you see and hear, which is an eyeful and earful, is what you get. Friends and acquaintances have been par

ticularly impressed by his openness and strength in coping with the January suicide of his 16-year-old son.

"The reaction of the court was like family," Smith says. "Sharing my reactions to Adam's death has been therapeutic. At our monthly meeting in February, the other judges were holding and hugging me and saying,

We're all with you.' "

Things were not quite so coll? gial when Smith came to the Court of Federal Claims. Some of his col leagues were piqued by his appoint

ment, figuring the former counsel to two of Reagan's election cam paigns?and former professor at

Widener University School of Law in Wilmington, Del.?was handed a political plum as a nice landing spot.

And, well, that is precisely what it was. But Smith liked where he landed and has flourished.

"I found it to be almost my ideal job," he says, with that qualifier "al most" thinly concealing the ambition that many trial judges from acade

mic backgrounds have for an appel late seat.

Working Hard for Respect From the start, Smith threw

himself into the task of improving the image of the claims court and its place in the federal judiciary.

"It wasn't a varsity court," re

calls Thomas M. Susman, a partner in the Washington office of Boston's

Ropes & Gray (and a member of the ABA Board of Governors) who is Smith's political opposite but close friend and an informal lobbyist for the court on Capitol Hill. "He's put it on the map."

That was accomplished in part by creating a court advisory council made up primarily of lawyers, as well as by making countless speech es to bar groups, traveling city to city for presentations with the Fed eral Bar Association, and swearing in members of the court's bar. Smith is much like a gladhanding univer sity president, part salesman, part lobbyist and part emissary.

"Just the force of his personal ity has really affected the court," Susman says. "And I hear this from the judges. A lot of them don't like to do that sort of thing, but they think he's done a great job with it."

And there have been other sur prises from Smith.

"Those of us who know him well would not have guessed he'd be

ABA JOURNAL / DECEMBER 1997 73

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such a strong administrator," Sus man says. Smith's management

style is laissez-faire, like his eco nomic theories, and laid back, which is his manner. Where his predeces sor cracked the whip of productivi ty, Smith "has a way of finding the right person for the right job, or that person finds him," a colleague says. "And he's very good at seeing when we've reached as much of a consensus as we're going to and stopping it at that."

One colleague who admits to initial wariness of Smith says, "He turned out to be such a likeable guy. It sounds hokey, but he's worked so hard, so unselfishly to get us respect as a court."

There was a time when the claims court was the Rodney Dan gerfield of the federal judiciary. The court's name has been tinkered with over the years, most recently adding the word "federal" in hopes that peo ple would stop thinking it is some kind of small claims court.

Nothing could be further from the truth. Court of Federal Claims judges, who try cases without ju ries and travel the country holding court for the parties' convenience, regularly hear claims in the hun dreds of millions and even billions of dollars.

With 1997 coming to an end, the year's largest award by the court has been $135 million to a timber compa ny in a government contracts case, Ketchikan Pulp v. U.S., No. 94-96.

The court has become some

thing of a hybrid. The twist |L is that it is a creature of Ar

ticle I with specific jurisdic- ^ tion, rather than part of the m Article III judiciary. Its abil- ^ 1 ity to decide monetary claims \ against the government basi cally is a power of the purse delegated by Congress. )hi^k And yet the Court of Federal Claims is the only jifH so-called free-standing Arti- flH eie I court that comes under the Administrative Office of the U.S. Courts along with the Article III judiciary. Oth- ^^fl er Article I courts?the U.S. BH Tax Court, the U.S. Court of >

j|| Veterans Appeals and the r. mk U.S. Court of Appeals for the Armed Forces?deal directly ^ with Congress for appropria- {\% tions.

"

So Smith's court is a lone stepchild clutching the f ? apron strings of the third ?\ , ^ branch of government, spe- ^

. % cifically the Administrative \ Office, which is more inclined to care for its "legitimate" iSP^S Article III children. That be comes clear when Article I judges go to the "judge school" run by the Federal Judicial Center for training the new and offering con tinuing judicial education to others.

"No one's ever quite figured out what we are," says one Court of Federal Claims judge. "Some of the judges here have felt inferior to Ar ticle III courts. I feel unique."

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Smith kicks back in his elephant slippers, which he calls "Plaintiff" and "Defendant."

The court has more cachet than simply its uniqueness. One of its for

mer members, Judge Alex Kozinski of the 9th U.S. Circuit Court of Ap peals based in San Francisco, whose ambition is no more a secret than his talent, likes having his opinions go before the Supreme Court. It was

Taking on Takings Law In his takings jurisprudence, Chief Judge Loren A. Smith of

the U.S. Court of Federal Claims questions the logic that says if a plane crashes into your house and destroys the den, you shouldn't be compensated since you still can live in the rest of the house.

'Thaf s where the law of regulatory takings stands now, and it doesn't make sense," Smith says. Sooner or later, the U.S. Su preme Court in all likelihood will confront Smith's logic. To accept it, the Court would have to go beyond its landmark 1992 regula

tory takings decision in Lucas v. South Carolina Coastal Council. In Lucas, the Court ruled that a developer deserved

compensation because regulation prevented him from any economically valuable use of his beachfront property. The decision left open the issue of partial takings, which would require overturning the Courts 1978 decision in Pennsylvania Central Transportation Co. v. New York City.

In 1994, the Court denied certiorari and let stand a decision of the Federal Claims Court in which Smith had started chipping away at the 100 percent rule for takings. In Uveladies Harbor v. United States, Smith decided that a New Jersey developer was entitled to the "highest and best use" of a 12.5-acre parcel of an original 250-acre site.

Smith's opinion defined precisely what the property interest is, and the logical conclusion to that would be the legitimacy of a claim for a partial taking.

'The 100 percent principle is totally a judicial creation and really has never been addressed by the Supreme Court," he says.

Regulatory takings law got a big boost from the Court's decision in Lucas, but Smith was hammering away at the issue before that and has continued doing so.

In Whitney Benefits v. United States (1989), one of the big gest and earliest regulatory takings cases decided by the Fed eral Claims Court, Smith awarded $150 million plus interest to a

Wyoming coal mining company that was forced to cease work because of the 1977 Surface Mining Control and Reclamation Act

Smith's decision in Bowles v. United States in favor of a property owner who was denied a permit to put a septic field near his retirement home while his neighbors had been allowed to do so, prompted several members of Congress to draft some of the property rights legislation now quickly moving on Capitol Hill.

In his opinion, Smith detailed the plaintiffs costly and time consuming path through federal District and appellate courts before success after a lengthy trial in his court The Bowles case was egregious," Smith says. 'The better solution is for Congress to set the limits on what the government can and can't do."

74 ABA JOURNAL / DECEMBER 1997

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?not until his fifth year on the ap peals court that one of his decisions received that highest scrutiny. But in the early 1980s, as chief judge of what was then called the U.S. Claims Court, Kozinski saw three of his decisions reach the Supreme Court in just 3k years.

Kozinski has called the Court of Federal Claims "a well-kept secret," describing it as "the most sophisti cated practice in any court save the Supreme Court."

The litigation often is techni cal, and the litigants usually very knowledgeable and experienced in the subject matter. Occasionally, silver-tongued lawyers used to

\ ^ swaying juries venture to the court. "They're very entertaining," one

f judge says, "but they don't sway us."

^-" ? Among notable cases in recent

gTw|H years have been a multibillion dollar 4? ̂ Hj government contracts claim regard

Mj^H ing the B-2 stealth bomber; a multi poli billion dollar claim and $ 111 million ??9H award to Hughes Aircraft for unau

?hHH| thorized government use of its satel

laBIlS Ute guidance technology; a suit by ?HHm federal judges claiming Social Secu

rity deductions from their pay consti tuted a violation of the compensation clause; and Smith's much talked about ruling in the so-called Winstar cases that could add as much as $20 billion to the cost of cleaning up the lingering savings and loan mess.

Potent Mix of Charm and Savvy Smith "doesn't have to think

about being a self-promoter," Sus man says, because his intellect and charm together serve all the promo tional needs anyone would ever have."

Susman met Smith in the early '80s, when they were part of a bipar tisan balancing act on the Adminis trative Conference of the United States, which was working to undo bureaucratic logjams between vari ous federal agencies. They've kept working together on activities that include trips to foreign countries giv ing educational presentations on be half of the U.S. Information Agency.

But their most effective part nership has devoted Smith's charm and Susman's knowledge of work ings on the Hill (he spent 11 years as counsel to the Senate Judiciary Committee when it was chaired by Edward M. Kennedy, D-Mass.)to put the Court of Federal Claims on par with federal District Courts in matters of pay and tenure.

Under changes they advocated,

claims court judges' pay is pegged at that of federal District judges, and their 15-year seats have been augmented with a tenure system that lets them remain at full pay if, upon not being reappointed, they continue to hold themselves out to handle a certain caseload.

These legislative changes were not political favors, Susman notes, but rather pragmatic responses to the problems inherent in the court's role and place in the judiciary.

Without the changes, the pair told legislators, conditions were ripe for the perception that the court's judges were currying favor with the parties in litigation before them. The Justice Department, for instance, which is a party in every case, could have a say in executive branch reap pointments. And with big law firms often on the other side of cases, the judges might be seen as keeping an eye toward landing a job with one of them if not reappointed.

Though the Administrative Of fice has the Court of Federal Claims under its administrative wing, it fought those pay and tenure better

ments for the court's judges. But Smith and Susman have chipped away at the Article III status denied the court to the extent that it now quacks and waddles even though it's not called a duck.

Moreover, legislative proposals moving on a fast track would give the Court of Federal Claims con current jurisdiction with a District Court, which, as the mirror oppo site of the claims court, can offer remedial relief but not monetary damages. Under the proposed legis lation, either court could grant ei ther kind of relief. That way, Smith argues, years of costly litigation could be removed from the layered process that sometimes requires go ing to both courts successively.

To be sure, there are critics. "The fact that there is such in

terest among some members of Con gress to grant additional authority to the court is due in part to Chief Judge Smith and his strongly held views on takings," says Glenn Sug ameli, a lawyer for the National

Wildlife Federation who has litigat ed in the court and debated Smith on the hustings. "I'd be surprised if there would be the same degree of effort to empower [the court] if someone else were chief."

But then seeing something that otherwise wouldn't exist is what magic is all about.

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