An upcoming opening on the only federal appeals court that’s never had a Black member gives President Joe Biden a chance to make good on his promises to consider diversity in judicial appointments.
Two sitting judges on the U.S. Court of Appeals for the Federal Circuit told Bloomberg Law, in recent interviews before this week’s announcement of the opening, that it’s time to bring a Black judge onto the bench.
“We need more Black judges, we need more Black people in positions of power,” Judge Kathleen M. O’Malley said. “I know that there are talented people out there who could be a judge on our court, and I’m hoping that we will see that happen.”
Judge Todd M. Hughes said “there’s just no reason in 2021" not to have a Black judge on the court. “I really do hope that the first nominee out of the gate is an African American man or woman—and this is not just crass identity politics because I know there are qualified people out there,” he said.
Biden got his opening, the first on the Federal Circuit in six years, when Judge Evan J. Wallach elected to take senior status at the end of May. It’s the only federal court of appeals that didn’t have any vacancies during President Donald Trump’s administration.
Biden has pledged to nominate diverse candidates for political and judicial appointments, including vowing to appoint a Black woman to the U.S. Supreme Court.
The Federal Circuit is unique among the appeals courts because it has nationwide jurisdiction over all patent cases—which account for about two-thirds of its docket—and other suits involving the government. It is also the youngest circuit, founded in 1982.
In addition to having no Black judges, few Black attorneys practice before the Federal Circuit, and Black clerks are also rare. Inequities in education and systemic problems in law firm culture have been blamed for low minority representation in all legal fields, but especially those that are science-based, like intellectual property law.
The Federal Circuit’s bench is diverse in many ways, due in large part to President Barack Obama’s seven nominees with varied backgrounds.
He appointed the court’s first two Hispanic judges, its second Asian American judge, and the first openly gay judge on any federal appeals court.
Two of Obama’s appointments were women, bringing the total to five of the court’s 12 active judges.
Still, there’s a glaring hole when it comes to Black representation, and that’s a problem for the court’s legitimacy, O’Malley said.
“The more that the bench doesn’t look like our country, the less faith people will have in us,” she said. And it’s important for diversifying the profession overall, because diverse candidates need to see more people who look like them in positions of power, she said.
Attorneys who might want an open seat shouldn’t just sit back and wait for a call from Biden’s administration, O’Malley said. “Candidates need to make their interest known,” she said. “I mean, do you think I would have been moved from Cleveland to the Federal Circuit if I didn’t say, ‘Hey, I’d like this job’?”
O’Malley reached out to senators and the White House in 2009 about her interest in a court appointment in the Washington area, where her husband worked, according to her Senate Judiciary questionnaire. She expressed particular interest in the Federal Circuit, and was nominated the following year when Judge Alvin A. Schall took senior status.
“If there are good minority candidates, they need to make their voices heard and express their interest,” O’Malley said. “I hope that they’ll do that.”
Diversity at the court begins with the clerks the judges hire.
O’Malley has seen a marked improvement in gender diversity among clerks in her 10 years on the court. Each clerk class for the last few years has been about half women, and many are top candidates with technical backgrounds, she said.
The court also does “fairly well” in terms of LGBTQ representation, said Hughes, who recently had his first transgender clerk.
But both judges lamented that they aren’t getting many applications from qualified candidates from other minority groups. The court has had about 20 Black clerks in its history, according to Bloomberg Law research.
“We do a very poor job on hiring African American and Latino folks, and I’m right there in that camp,” Hughes said. “I’ve had one Black clerk and one Latino clerk in seven years. I haven’t really had applicants beyond those people that are of a certain quality.”
O’Malley said solving the pipeline problem will require work from the bottom up, including getting minorities interested in science and the legal profession from a very young age.
Judges need to look beyond the usual feeder schools like Harvard and Yale, which would help find people with more diverse backgrounds, she said. “Maybe it’s because I personally came from a non-Ivy League school,” she said.
Hughes said he makes an effort to get the word out about the court to law students who might not otherwise apply. “I think it really comes down to visibility and getting people to apply and encouraging applications,” he said.
“The less diverse our chambers, the less diverse our thought processes will become,” O’Malley said.
Diversifying the Bar
Lack of diversity among clerks has ripple effects. “If you look at the patent profession, it’s sorely lacking in diversity and our court is one way to help that because a lot of patent lawyers have clerked for the Federal Circuit,” Hughes said.
Hughes told the story of a Black woman clerk being really excited after an argument session because a Black man had argued a patent appeal. “It was the first she’d seen,” he said. “I think it was year four for me, and it was the first for me too.”
When women and minorities do argue at the court, they are almost always from the patent office or Justice Department, said Hughes, who came to the court in 2013 after a nearly 20-year career at Justice.
Attorneys from Big Law who argue are much more likely to be white men. O’Malley attributes that disparity to the pipeline, because the type of “bet the company” cases that the Federal Circuit hears often call for the most senior partners to argue them.
Several of the court’s judges have told the bar in public appearances it’s a priority to see younger and diverse lawyers argue. The court has even reinstated a few canceled arguments to allow attorneys to get their stand-up experience in court.
“We try to the extent we can, but again, that’s not really our choice,” O’Malley said of the attorneys appearing before the court. “It’s, you know, moral suasion.”