A few weeks ago, the Senate confirmed the nomination of OPM general counsel/acting OPM director/former Special Counsel Elaine Kaplan to the little-known U.S. Court of Federal Claims. The Court of Federal Claims hears government contracts cases, vaccination fund claims, and other odd legal bits and ends. Past alumni from this court have gone on to the nation’s federal courts of appeals, but this is by no means a guarantee. In fact, since 1982, when this court was created, only one nominee faced opposition in the Senate. Until Kaplan, that is.
On September 17, 2013, the Senate held a vote (itself a rare feat for such nominees), and approved Kaplan’s nomination by 64-35, with 1 abstention. The 35 opponents were all Republicans – a mix of Tea Party and establishment pols, including Mitch McConnell and the whistleblower-friendly Chuck Grassley. No Democrat voted against Kaplan, and 11 mainstream Republicans voted in favor.
Why did they vote this way? Was it because Kaplan is openly gay? Perhaps, though just a few days later the Senate voted, by 98-0, to confirm the nomination of Todd Hughes to the U.S. Court of Appeals for the Federal Circuit. Hughes is the first openly gay nominee to the nation’s courts of appeals. Was it because Kaplan is a woman? Perhaps, though on the same day that she was confirmed, the Senate also confirmed, by voice vote (“all in favor say aye… all opposed say nay… the ayes have it”), the nomination of Patricia Campbell-Smith to the same Court of Federal Claims.
So what’s the reason? Could it be a letter of concern sent by a number of federal whistleblowers, recounting Kaplan’s questionable history as Special Counsel and her uneven commitment to whistleblowers? Perhaps. Was it plain old partisanship? Also plausible.
Kaplan, by all accounts, is an establishment figure in the federal watchdog community. She was awarded for her efforts as Special Counsel by the veal pen entities Government Accountability Project and the Project on Government Oversight, despite her mediocre record as the top federal whistleblower defender. She is close with the federal employment bar. And she played a key role in promoting the Obama Administration’s unprecedented assault on civil service protections (a move which placed her good government allies in an awkward position, no doubt).
But a number of marginalized whistleblowers had the courage to air their concerns to the Senate Judiciary Committee, and in turn 35 Republican Senators were willing to reject the fetid, calcified, elitist, out-of-touch Obama/GAP/employment bar confluence of interests that makes a mockery of rule of law and democracy and exploits whistleblowers with impunity.
It bears mentioning that none of the three alumni from the Court of Federal Claims who were elevated to the federal circuit courts had any Senate opposition at this stage. For Kaplan to move up, she would have to distinguish herself now, and a future president would have to take on the chance of passing a nominee with “baggage.”
There’s a lesson here for firepups, somewhere.