March 16, 2021 - Federal Circuit Insights

50-50 Federal Circuit?

Well, that didn’t take long. As we noted in January, although the Federal Circuit had no vacancies during President Trump’s term, several judges were eligible or soon-to-be-eligible to create a vacancy for President Biden (see There’s a New President. How could that Affect Practice in the Circuit?). Judge Wallach has now done just that, with the Court’s website announcing he will take senior status at the end of May 2021.

Judge Wallach’s open spot will give President Biden an intriguing opportunity: gender parity on the Federal Circuit. At the moment, seven of the active judges are male, five are female. So that’s easy math: fill Judge Wallach’s seat with a woman, and the Court will have an equal number of each (among active judges).

That wouldn’t be a first for a federal court of appeals. President Trump’s addition of three women to the Eleventh Circuit already brought that court to parity. But it would be a first for the Federal Circuit. President Obama could have helped the Circuit reach that milestone. Of his seven(!) appointments though, only two were women, Judge O’Malley and Judge Stoll. By comparison, both of President George W. Bush’s appointees were women, Chief Judge Prost and Judge Moore.

Of course, the experience the new judge will bring is important. Judge Wallach came to the Federal Circuit after serving sixteen years on the Court of International Trade. As readers know, the Circuit hears appeals from that specialized court. No doubt that factored into President Obama’s decision to nominate Judge Wallach. And President Biden may want to replace that expertise. But even if his nominee doesn’t, the Circuit may not lose Judge Wallach’s experience right away. Many of the senior judges continue to hear cases (see our previous post How Often Do Federal Circuit Judges Sit?).

What will Judge Wallach’s change in status mean for oral advocates? Well, if he sits less often, it could mean less grilling. Judge Wallach is a stickler for careful briefing. Many an advocate has spent several minutes of their argument time defending their brief, trying to satisfy the judge that their statements about the law or the record were accurate. That lesson from Judge Wallach should live on, no matter how often he continues to sit: an advocate’s credibility is key, and each member of any briefing team should take extra care not to squander it by overstatement.