President-elect Joe Biden may get to shape the Federal Circuit in a way that eluded his predecessor since there hasn’t been a vacancy on the court in five years.
The U.S. Court of Appeals for the Federal Circuit, the nation’s top patent court, is the only federal appeals court that didn’t have any judicial vacancies during President Donald Trump’s presidency.
President Barack Obama played a large role in shaping the current court, adding judges with a diversity of background and experience. But the court is still the only federal appeals court that has never had a Black judge, which Biden may seek to change.
“Assuming no deaths or unexpected retirements, during a Biden presidency, there’s a chance he could fill up to four seats within his first two years, maybe as many as seven depending on the older judges and their health,” said Ryan Vacca, patent professor at the University of New Hampshire School of Law who studies the court.
“There’s the potential for quite a bit of turnover, but it’s really hard to predict given the lack of tradition on the court and the individual judges’ circumstances,” he said.
Obama had the chance to fill more vacancies on the court than any president since the court was founded in 1982.
His seven appointees included many firsts: the first former trial court judge; the first Latino and Latina members of the court; the first judges with trade backgrounds; the first appointee from a senior position at the patent office; and the first openly gay judge on any federal appeals court.
It’s not surprising there were so many vacancies around the same time, given that the original judges got older and decided to leave at once, Federal Circuit scholar Rochelle C. Dreyfuss of New York University School of Law said.
She compared it to a neighborhood: “People get really old, then comes a lot of young kids again.”
Judges who are over 65 could create another round of vacancies at the court in the next few years.
Five of the 12 active judges on the court are eligible to take a semi-retirement called senior status, and they are the ones to watch for potential vacancies.
Only active status judges are replaced when they take senior status or otherwise leave the court.
Judges over the age of 65 may take senior status once they have served on the federal bench for 15 years. Senior status judges continue to receive their full salary while cutting back significantly on their caseload. There are currently six senior status judges on the court, who help with the court’s busy docket.
The Federal Circuit doesn’t seem to have the tradition of some appeals courts, like the Second Circuit, where judges take senior status soon after they are eligible.
“The rationale tends to be you do it for the court,” Vacca said of courts with that tradition. “This is your home institution, and you realize that once you take senior status, your court effectively gets another judge which helps with the caseload and all that.”
Instead, several of the Federal Circuit judges currently eligible for senior status don’t seem like they’re in a hurry to leave.
Judge Pauline Newman, who is now the longest-serving federal appeals judge on active status, could have taken senior status in 1996. At 93, she is still an active questioner at oral argument and doesn’t show any signs of wanting to retire.
Judges Alan D. Lourie and Timothy B. Dyk have also been eligible for years without going senior. Obama appointment Judge Evan J. Wallach hasn’t been on the court very long, but is already eligible due to his tenure on the Court of International Trade.
Chief Judge Sharon Prost may be the most likely candidate to semi-retire first, given the end of her term as chief in May, Vacca said.
Judge Kathleen M. O’Malley will be eligible in 2021, and Judge Jimmie V. Reyna in 2022.
Not As Political
There is a perception that judges wait to retire under a president of the same party as the one that appointed them to ensure their seat is filled by a like-minded judge.
But that is likely less of a concern for the Federal Circuit, whose limited jurisdiction of patent cases and certain suits against the government isn’t as political as other courts.
“It’s really hard to tell politically where you ought to fall on IP,” Fish & Richardson partner John Dragseth in Minneapolis said. Historically conservatives are more pro-asset and therefore pro-patent owner, but that’s not always how cases shake out, he said.
A good example is the dichotomy between Prost and Judge Kimberly A. Moore. Both were appointed by President George W. Bush, but they have recently been on opposite sides of many opinions on thorny issues like patent eligibility.
However a vacancy opens up, it could give Biden a chance to make good on his vows to consider diversity in his political and judicial appointments.
Patent cases make up a majority of the court’s docket and take up an even larger proportion of the court’s time because of their complexity. But potential nominees for the Federal Circuit don’t necessarily have to have any technical expertise.
The court has maintained a “good balance across the judges in terms of their background and experience,” patent litigator Nitika Gupta Fiorella in Fish’s Delaware office said.
She pointed to the court’s mix of former practitioners, judges, and academics, some with science experience and some without. Patent law has a lot of nuance, and people with diverse viewpoints can bring different perspectives, she said.
Many think Biden should consider appointing the court’s first Black judge.
“I’m not for checking boxes per se, but there has to be an African American attorney in the United States that would fit this role very well and would be willing to do the job,” Dragseth said. “And it just seems like the sort of thing they should do if they can find that person.”