In a recent blog post, Bill Vobach noted that Edward C. DuMont’s original nomination as a judge for the Court of Appeals for the Federal Circuit has now been awaiting Senatorial action for more than one year.
This hold-up is a shame. DuMont is eminently well qualified. He has spent years as a top litigator at WilmerHale, Sullivan & Cromwell, and the Solicitor General’s Office within the Department of Justice. He graduated from Yale, Phi Beta Kappa and Summa Cum Laude with the highest standing of any humanities student. At Stanford Law School, DuMont graduated with distinction and was honored with membership to the Order of the Coif. After law school, he clerked for conservative thought leader Richard Posner on the Court of Appeals for the Seventh Circuit. DuMont’s litigation experience has focused primarily on appellate practice and he has argued 18 Supreme Court cases. He has also done trial work and handled at least one patent lawsuit through trial. Even though he has not focused on any particular areas of law, DuMont has worked on a number of intellectual property focused lawsuits, including the Lemelson case, Mattel v. MCA (trademark), Eldred (copyright term extension), Gen-Probe v. Vysis (precursor to MedImmune), Merck v. Teva, Princo v. Philips, AFT v. Cardinal, and Tivo v. Echostar. The ABA has rated DuMont as “unanimously well qualified” and he has also been awarded numerous “leading lawyer” awards throughout his 25-year legal career.
While DuMont has been awaiting Senate confirmation, both Jimmie Reyna and Kathleen O’Malley have been given approval and are now Federal Circuit Judges.
Why the Delay: The hold-up for DuMont’s nomination is the fact that he is openly gay. If approved by the Senate, DuMont would be the only openly gay federal appellate judge and one of only three openly gay federal judges. To-date, no federal judicial appointment for an openly gay man has been approved by the Senate. The delay has been entirely behind the scenes and no Senator has been bold enough to publicly announce the ridiculous position that homosexual men should not be allowed to judge patent appeals.
To be fair, the issue of homosexuality does arise occasionally in the federal employment cases heard by the court. Earlier this year, for instance, in Todd M. Jack v. Department of Commerce, the Federal Circuit was asked to consider whether Jack had been properly suspended for 120 days after he accused his USPTO co-workers of being homosexuals, claimed that his co-workers had “hired Chinese homosexuals to stalk and harass him”; and “lunged” at a superior. The Federal Circuit affirmed the Merit Systems Protection Board’s decision that the suspension was not a violation of Jack’s rights. It is hard to see how this case could have been decided any differently even if the judge himself were gay. The cases involving homosexual issues are much less common than those involving other forms of harassment – such as (hetero)sexual and racial harassment.
The bottom line in DuMont’s situation: The subject matter jurisdiction of the Court of Appeals for the Federal Circuit is severely limited in scope, and DuMont’s sexual orientation is highly unlikely to impact his judicial performance in any way. At this point, Senators Leahy (D-Vt) and Grassley (R-Iowa) and the other members of the Judiciary Committee are the ones responsible for holding back. The Federal Circuit Bar Association, AIPLA, and IPO have all given lip service to supporting DuMont’s nomination, but it is time that they begin to push a bit harder.