The Next Chief Judge: Judge Moore

Chief Judge Prost took over as Chief at the end of May 2014 just after Judge Rader stepped-down from the position.  The position lasts for seven years and that date is approaching in May 2021. In addition, the statute prohibits a judge from being Chief Judge once they turn 70 years old.  Judge Prost is also turning 70 toward the end of May 2021.  28 U.S.C. 45. Thus, we’ll have a new Chief Judge within the next 7 weeks or so.

The next chief is defined by statute:

(1) The chief judge of the circuit shall be the circuit judge in regular active service who is senior in commission of those judges who—

(A) are sixty-four years of age or under;

(B) have served for one year or more as a circuit judge; and

(C) have not served previously as chief judge.

Judge Moore is the most senior active judge that satisfies the three statutory requirements and thus is the chief-apparent.  Judges Newman, Lourie, and Dyk are the three most-senior active judges.  However, they are all over the age of 64 and thus do not qualify to become the next Chief Judge.  Judge O’Malley is next in line following Judge Moore, but turns 65 in November 2021. Assuming that Judge Moore takes to the role and remains Chief Judge for her full 7 year term, the next Judge on deck will be Judge Chen in 2028. Since all of the current Judges are >50 years old, none would be eligible for the subsequent go-round in 14 years.

* I also apologize for openly discussing ages of these humans in such an uncouth way, but it is required by the statute.

30 thoughts on “The Next Chief Judge: Judge Moore

  1. 6

    I remember something in labor law 20 years ago that it is impermissible to discriminate on age and think this would be especially true of chief judges. The arbitrary cut off date of 65 years old in 28 USC 45 seems to conflict with The Age Discrimination in Employment Act of 1967 29 U. S.C. 626(e) which prohibits discrimination of people over 40. Somebody out there needs to challenge 28 USC 45 in Federal Court to allow qualified and experienced judges over 40 on the bench as Chief Judge instead of cutting them off purely due to age. My vote is for Judge Newman who has been a voice of reason and in the minority for too many years. My two cents from the back bench.

    1. 6.1

      I don’t believe the ADEA applies, because judges are eligible to take senior status at 65. As I recall it, and it is a long time since I took an employment law class, the ADEA has only limited applicability to workers over 65 because of certain exclusions – for example, people with retirement plans, highly compensated people: as I recall it, it is primarily a means to protect workers in the 40-65 age group.

    2. 6.2

      J. Moore is not impressive. I’ve pointed out many times how bad her opinions are. She just isn’t an intellectual heavyweight and instead is a go along with it type of person.

      Our only hope is a bunch of these judges retire or kick off and we get some new ones that have some integrity and are educated in science.

      But what we can be sure is going to happen under Biden is that only women of color are going to be appointed. And maybe this will work out but–frankly–when that is the main criteria for success I am not hopeful it is going to work out.

    3. 6.3

      This is either trolling or very confused.

  2. 5

    Can we be remined of exactly what powers the chief judge has?

    1. 5.1

      I’m not sure whether there’s a good short answer. The obvious one is that the chief presides over any panel or en banc hearing and assigns authorship of opinions when the chief is in the majority.

      I think this document describes other powers and (mostly) responsibilities.
      link to fjc.gov

    2. 5.2

      While not having any citations to offer (not even one with the prominent footnote of:

      This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch. While the Center regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the Board of the Federal Judicial Center.

      I seem to recall that enforcing propriety of panel decisions to adhere to NOT being in conflict with prior panel decisions was a major responsibility.

      1. 5.2.1

        Internal Operating Procedures are a bit more official, and refer frequently to the chief. Responsibilities seem to include setting up motions panels, overseeing the clerk’s office, and overseeing the processing of en banc petitions.
        link to cafc.uscourts.gov

        1. 5.2.1.1

          Another excellent link – many thanks!

    3. 5.3

      Can we be remined of exactly what powers the chief judge has?
      This is a bit of second-hand or third-hand knowledge, but my understanding is that the Chief Judge can use his/her influence to call for En Banc panels (and actual decisions therefrom) that can be used to create more consistency in the law.

      As you know, precedential opinions can only be reversed by an En Banc decision (or the Supreme Court, which is exceptionally rare). As I’m sure we all know, there are a lot of inconsistent precedential opinions being authored by the Federal Circuit right now. One need only look at how the 101 jurisprudence has evolved (or devolved?) since Alice.

      Strong leadership at the top could lead to more En Banc decisions that could lead to more consistency in the law. Wouldn’t that be nice?

      My understanding (again, second- or third-hand) is that the current Chief Judge had/has little interest in doing the things I mentioned above.

      With a new Federal Circuit judge on the way (and perhaps 2 or 3 more???) and a new Chief Judge that might be interested in bring more consistency to the law, we could see some major changes in the next year or so. This is all speculation on my part as it is quite possible that we’ll just get more of the status quo. However, if there ever was a time in recent years to have even a slightest bit of optimism, this is it.

      1. 5.3.1

        [T]here are a lot of inconsistent precedential opinions being authored by the Federal Circuit right now. One need only look at how the 101 jurisprudence has evolved (or devolved?) since Alice.

        I cannot really agree that the CAFC generates a lot of inconsistent verdicts, except in the §101 context. That is to say, I do not find a lot of hopelessly muddled jurisprudence on (e.g.) patent exhaustion, or infringement under §271(g), or inherent anticipation (etc). The CAFC are actually pretty good at not getting themselves into situations in which en banc resolution of conflicting precedent is necessary.

        Section 101 is, of course, very much the exception to that rule. The §101 jurisprudence is a hopeless mess. This, however, is only very slightly the CAFC’s fault. If the SCotUS wants to pretend that Flook, Diehr, Mayo, & Alice are all good law, then unintelligible muddles will necessarily ensue.

        1. 5.3.1.1

          Welcome back! I admire you resolve to have given up social media for lint.

          1. 5.3.1.1.1

            Lent.

        2. 5.3.1.2

          That is to say, I do not find a lot of hopelessly muddled jurisprudence on (e.g.) patent exhaustion, or infringement under §271(g), or inherent anticipation (etc).
          Because there isn’t a lot of jurisprudence on those topics to begin with. However, when you walk into the more heavily trodden areas, you’ll see more inconsistency. For example, when it comes to claim construction, is one impermissibly reading limitations from the specification into the claim? or is one merely interpreting the claim language in view of the specification?

          This, however, is only very slightly the CAFC’s fault.
          With that I have to disagree. I’m not giving a pass to the Supreme Court. However, in Alice, the Supreme Court cozied right up to Bilski to justify their assertion that the invention was directed to an abstract idea. This is what the Court wrote in Alice:
          “Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce.’” … The use of a third-party intermediary (or “clearing house”) is also a building block of the modern economy. … Thus, intermediated settlement, like like hedging, is an “abstract idea” beyond the scope of §101.

          If the Federal Circuit had cabined Alice to fundamental economic practices long prevalent in our system of commerce” that are also building blocks of the modern economy then we would have whole heck of a lot less problems now. These two aspects were what the Supreme Court explicitly identify to assert that the Alice invention was directed to an abstract idea. However, this language is almost completely missing from the Federal Circuit’s jurisprudence. At best, you see an argument that some invention is directed to an ‘economic practice.’ However, that alone is NOT the standard used by SCOTUS.

          There is an opportunity, with an en banc decision for the Federal Circuit to cabin Alice and erase the morass of case law that we have today. If the Supreme Court wants to open up the can of worms with regard to what is patent eligible and what is not, then let THEM do it. The Federal Circuit must take the blame for ignoring the only explicit guidance provided by SCOTUS for determining whether an invention is directed to an abstract idea.

          While I’m at it, another thing the Federal Circuit should do is stop ignoring that the Supreme Court’s recognition of “the preemption concern that undergirds our §101 jurisprudence.” Right now, the Federal Circuit gives preemption lip service. According to the Federal Circuit, preemption is already baked into the two-step Alice/Mayo test. However, and by way of example, how is Hooke’s law preempted in any way, shape, or form by the claims at issue within American Axle?

          There is an opportunity to reshape 101 law at the Federal Circuit level. However, it will require a Chief Judge who wants to do it and will put feet to the fire to get it done. It will also require that Cunningham (and perhaps another newly-appointed judge or two) are amenable to that.

          1. 5.3.1.2.1

            It appears that no one — at any level — wants to cut the Gordian Knot.

            Too bad, really, as I have provided the perfect t001 for the job: the Kavanaugh Scissors.

          2. 5.3.1.2.2

            Bingo Wandering.

            Had the CAFC merely followed SCOTUS’ dictate re 101 / eligibility, American innovation wouldn’t be in the crumbling shape that it’s in.

            Great hope that with the new sheriff Moore in town, Alice / Mayo can be properly and correctly cabined . . . just as SCOTUS intended.

            She knows her stuff . . . and what needs to be done.

            1. 5.3.1.2.2.1

              Pro Say – simply not so.

              SCOTUS is the cause of the dysfunction, and its own decisions are simply not possible to be without conflict.

              To think that SCOTUS intended ANY ‘cabining’ is to ignore reality.

              You cannot get to where you want to be from the path that you are taking here.

  3. 4

    Judge Prost was radically anti-inventor. Judge Moore applies the law equally to inventors and infringers. This is a positive development.

    1. 4.1

      I cannot agree with the characterization of Judge Prost as “radical,” but I definitely agree that Judge Moore is the very incarnation of fair. She is the best possible chief judge for this court, or any other court. The patent justice system will be in good hands with her as chief.

    2. 4.2

      Thanks for the input. I appreciate a constructive and intelligent comment.

  4. 3

    I am just struck by the overall poor quality of judges.

  5. 2

    Given that we can have presidents who are 70+ (whether we like it or not), is it time for CAFC age-cap elimination . . . or at least an increase?

    1. 2.1

      Perhaps. I’d just note that (a) it’s the same rule for every circuit, (b) 65 is also the age at which a judge becomes eligible to take senior status under 28 USC 271 (subject to other criteria such as length of service under what’s sometimes called the “rule of 80”). Senior- and chief-eligibility aren’t inextricably linked, but I wonder if any discussion of raising the age for one might bring in questions about whether the other should be changed. Changing one and not the other might also make for a weird appearance of a senior-eligible judge staying active just so that s/he can become chief.

      That said, I’m not sure how much being the chief matters or how much any individual judges actually want to be the chief. The title has a certain gravitas, and the opinion-assigning responsibilities sound desirable, but I wonder if judges regard the extra administrative responsibilities the same way some academics discuss committee work. I would guess that on any circuit, someone has to be the chief, and the most important thing is to have a neutral rule to rotate the chief judgeship in a way that’s not overly susceptible to politics or gaming. I think it’s a good thing, for example, that the chief judge isn’t elected by peers. Longest-serving active judge under 65 who hasn’t already been the chief sounds like a good rule that probably doesn’t need fixing. All of the over-65 active judges would likely make excellent chiefs, but that doesn’t mean the rule needs changing.

      This thread by a Third Circuit practitioner points to the chief judge age criterion as an additional reason why presidents can better advance their political views by appointing younger judges.
      link to twitter.com

  6. 1

    So Judge O’Malley won’t get a shot.

    That’s a damn shame.

    1. 1.1

      Judge Newman won’t, either. That’s a d*mned tragedy.

      1. 1.1.1

        Judge Newman was next in line to be chief when Judge Markey turned 70 (Judge Nies would have been 65 at that time). However, Judge Markey stepped aside early and so Judge Nies became chief while she was still 64. Judge Nies paid it forward by stepping aside a few days before Judge Archer turned 65 (Judge Newman had turned 65 in the meantime).

        1. 1.1.1.1

          That implies that there is some benefit that the judges perceive in being chief judge.

          1. 1.1.1.1.1

            You get to have your portrait in the lobby on the second floor outside the courtrooms.

            1. 1.1.1.1.1.1

              And here, I thought it was because you got to be called, “Hey Chief”

      2. 1.1.2

        I concur.

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