Who is Elaine D. Kaplan?
According to her official biography, Elaine Kaplan is currently General Counsel at the United States Office of Personnel Management. She was appointed to this position on March 17, 2009. [See update below]
Kaplan began her legal career in the Solicitor’s Office of the U.S. Department of Labor, first in the Employee Benefits Division, and later in the Division of Special Appellate and Supreme Court litigation. Most recently, she served as Senior Deputy General Counsel for the National Treasury Employees Union. In this position and during her initial tenure with NTEU from 1984 to 1998, she litigated and supervised the litigation of cases at all levels of the federal court system.
In 1998, Kaplan was appointed by President Bill Clinton and unanimously confirmed by the Senate to serve as the head of the U.S. Office of Special Counsel, an independent agency whose mission is to protect the merit-based civil service by, among other things, investigating and prosecuting complaints alleging the commission of prohibited personnel practices, including whistleblower reprisal. After completing a five-year term at OSC in 2003, she became “of counsel” to Bernabei and Katz, a plaintiff’s side employment law and civil rights firm. Kaplan re-joined NTEU in 2004.
A native of Brooklyn, New York, Kaplan earned a J.D., cum laude, from Georgetown University in 1979. She received a bachelor’s degree in history from the State University of New York in Binghamton in 1976.
On March 19, 2013, President Obama nominated Kaplan for a 15-year term on the U.S. Court of Federal Claims.
UPDATE: Not unexpectedly, the Senate confirmed Ms. Kaplan’s nomination on September 17, 2013, by a vote of 64-35. Based on available information, this is only the second time a confirmation to this court received any recorded opposition, the other being in 2003. Notably, all Court of Federal Claims judges who were subsequently elevated to the federal courts of appeals (Kozinski, Mayer, Rader) were confirmed via unanimous consent at this stage.
Why are you against her nomination?
For reasons more fully detailed in Letters of Concerns, we believe that she was a bad choice for Special Counsel, and her judgment as general counsel of OPM also gives up pause. For instance, as Special Counsel, she let down whistleblowers and other federal employees who approached her office by failing to act in the interests of those employees and by failing to accept classified/intelligence disclosures, as required under the law. Her actions in weakening civil service protections, both as a union official in 1994 and as general counsel of OPM in 2011-12, are disappointing and betray the public interest. We believe the Senate ought to inquire about her judgment, wisdom, and legal acumen before allowing her to don the robe of a federal judge.
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