Saturday, January 09, 2010

Do CAFC judges aspire to be Supreme Court justices?

A post on the SeattlePI blog contained the following text:

"En banc is really more about politics than (legal) issues," said Cole Stuart, a patent attorney and CEO of the Lexevia law firm in Los Angeles. When parties file for en banc review, they're usually saying they "want to circumvent the normal procedure to opine on the issue."


The U.S. Court of Appeals for the Federal Circuit, Stuart said, is "highly political." It's made up of career-minded judges, most of whom probably aspire to be U.S. Supreme Court justices. Often, judges will disagree because of politics instead of law.

In general, en banc review is granted to about one-third of those who request it, Stuart said. Microsoft's status as a big corporation might help its chances, but the 12 Federal Circuit judges might just all want a piece of the action.

Hmmm, in recorded history, how many CAFC judges have been considered as potential nominees to the Supreme Court?

Of Stuart, from linkedin:

Mr. Stuart founded Lexevia in 2008. Lexevia is a platform for the most talented attorneys to practice law outside of a traditional big firm environment. Lexevia has attracted many seasoned former big firm lawyers seeking independence and self-direction while still maintaining the support network of a large firm.

The lexevia website notes:

J.D., Cum Laude, California Western School of Law, 1995

''IP Gains Importance in the Valuation of Company Assets'' Intellectual Property Today, May, 2004

There are five "Stuarts" on the USPTO roster of registered patent attorneys/agents:

Stuart Clinton R. Plano TX 75024 US
Stuart Donald R Indianapolis IN 46268 US
Stuart John W Portland OR 97204 US
Stuart Michael C New York NY 10176 US
Stuart Todd A Irvine CA 92614 US

***The comment below was posted on July 2, 2010, months after the initial post of January 2010. In the meantime, Judge Michel resigned from the CAFC to be able to speak on patent reform issues, and Elena Kagan, former Dean of Harvard Law and never a judge, was nominated to the US Supreme Court.


Blogger Unknown said...


Thank you for reposting my comment on IPBiz. I think you may have misunderstood the comment.

As I'm sure you're aware, en banc review by the Federal Circuit is a review by all twelve judges rather than the normal three judge panel. You're also certainly aware that panel reviews occasionally result in inconsistent rulings. Further, non-panel judges may disagree with a particular ruling by a subset panel and seek to revise or, on occasion, reverse a panel's decision.

It was this "political" element of en banc review to which I was referring in the comment you re-posted. When justices not on a panel believe that a panel has reached in incorrect decision, or when they may want to provide additional commentary or analysis to a panel opinion to alter the court's precedent, en banc is an effective tool for "reigning in" or otherwise affecting a panel decision.

Apparently you took my comment to read that Federal Circuit Judges who aspire to become Supreme Court Justices may promote their careers by using en banc review. I don't know how many Federal Circuit Judges aspire to become U.S. Supreme Court Judges, but I agree with you that utilizing en banc review of panel decisions to elevate oneself to the U.S. Supreme Court is probably not effective.

Thank you for your re-post and commentary.

5:18 PM  

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