This article appeared on the Law360 website on March 30.
As the Supreme Court's term heads into Spring, talk of the next Justice is overshadowing the pending high-profile cases. Conventional wisdom suggests President Obama will face another historic decision in the coming months. According to recent articles by Peter Baker of the New York Times and Jeffrey Toobin of The New Yorker, Justice Stevens will make a retirement announcement soon. Others think Justice Ginsburg's health may persuade her to retire soon. Setting aside questions about the veracity of the rumors, President Obama will likely have the chance to select nominees for one, perhaps two or more, seats on the high court sometime during his presidency.
Just as when Justice Souter announced his retirement, lists are multiplying across our nation's capital. No doubt much ink will be spilt over potential nominees, which include current solicitor general Elena Kagan, Cass Sunstein, Judge Diane Wood and Judge Merrick Garland. Overlooked by most reports are two highly qualified and politically effective choices who are literally across the street from the president: Judge William C. Bryson and Judge Timothy B. Dyk, both of the U.S. Court of Appeals for the Federal Circuit. And each of them worked for Supreme Court justices whom President Obama has described as personal heroes.
First, some brief background on the potential nominees. Judge Bryson joined the court in 1994 when President Clinton appointed him. Prior to his appointment, Judge Bryson was an appellate expert in criminal and constitutional law, working as an Assistant to the Solicitor General. He has also been the Chief of the Appellate Section of the Criminal Division, Counsel to the Organized Crime and Racketeering Section, Deputy Solicitor General, Acting Solicitor General and Acting Associate Attorney General. After Harvard College and law school at the University of Texas, he clerked for the legendary Judge Henry J. Friendly on the Second Circuit and for Justice Thurgood Marshall at the Supreme Court. Indeed, no stranger to the Supreme Court, Judge Bryson has argued over 30 cases before the Court.
Judge Dyk, who was also appointed by Clinton, has had a similarly impressive career. Before joining the court in 2000, he was a partner at and chaired the appellate practice of Jones Day from 1990 to 2000. Prior to that, Judge Dyk was an associate and partner at Wilmer Cutler and Pickering from 1964 to 1990. For about a year, he was a special assistant to then Assistant Attorney General Louis Oberdorfer, now senior judge for the D.C. District Court. Judge Dyk attended Harvard University and Harvard Law School, after which he served as a law clerk to retired Justices Stanley Reed and Harold Burton from 1961 to 1962 and to Chief Justice Earl Warren from 1962 to 1963.
These two short bios fall far short from capturing the spectacular careers Judges Bryson and Dyk have had. Both experienced the Supreme Court as law clerks. They each have significant appellate experience, both as an attorney representing clients and as a judge. And any practitioner who has argued before the two judges knows that each is a quintessential judge-always demanding of a direct answer to a question but equally respectful of forthright, firm advocacy.
Now, many readers unfamiliar with the Federal Circuit may ask: Isn't the Federal Circuit a patent court? And why would the Supreme Court need a "patent judge"?
Simply put, the Federal Circuit is much more than a patent court. The court is best known perhaps as the final arbiter of almost all patent appeals in the country. But a quick look reveals that most of the court's caseload involves non-patent cases. The Federal Circuit has jurisdiction over disputes involving government contracts, trademark appeals from the U.S. Patent & Trademark Office, tax refunds, claims of unlawful taking of personal property by the federal government, civilian and military pay claims, international trade disputes, federal personnel actions and compensation for veterans. On top of that wide array, the court also hears appeals from the Bureau of Justice Assistance concerning benefits for certain civil servants, such as firefighters and prison guards, and appeals involving compensation claims for injuries from childhood vaccinations under the National Childhood Vaccine Injury Act of 1986.
One need not worry about a Federal Circuit judge being unfamiliar with high profile Supreme Court litigation. The Federal Circuit routinely hears its fair share of what are considered traditional, cert-worthy issues. Included among these are cases involving antitrust, contract, discrimination, property law, due process, takings under the Fifth Amendment and First Amendment issues. For example, the Federal Circuit frequently decides claims of antitrust violations, including the currently contentious issue of so-called "reverse payments" to settle generic drug patents suits. Additionally, the Federal Circuit recently sat en banc to clarify the doctrine of patent misuse-a doctrine interwoven with antitrust law.
Other examples of significant Federal Circuit cases deciding issues routinely before the Supreme Court:
- Rothe Development Corp v. Department of Defense - The court determined that a section of the Small Business Act unconstitutionally violated the right to equal protection under the Fifth Amendment because Congress did not have a strong evidentiary basis for the race-conscious remedial measures of the Act.
- SKF USA, Inc. v. U.S. Customs & Border Protection - The court held that the petition support amendment of the Byrd Amendment does not violate the First Amendment.
- Gaylord v. United States - The court held that a U.S. Postal Service stamp based on a photograph of the Korean War Veterans Memorial violated the copyright of Frank Gaylord, the sculptor of the memorial.
- Rose Acre Farms v. United States - In a protracted takings case under the Fifth Amendment of the Constitution, the court held that an egg farm, producing hundreds of millions of eggs per year, did not suffer a regulatory taking requiring compensation when the U.S. Food and Drug Administration imposed restrictions on the farm in response to a salmonella outbreak in the 1990s.
- Xechem International v. University of Texas M.D. Anderson Cancer Center - The court held that the Eleventh Amendment of the Constitution immunizes state-controlled universities from patent law suits in federal district court.
- Amber Resources Co. v. United States - The court affirmed a finding that the federal government breached oil and gas leases held by 11 companies, resulting in damages of over $1 billion, possibly that largest single award against the federal government in the 150-year history of the Court of Federal Claims.
On top of the Federal Circuit's diverse jurisdiction, Judge Bryson and Judge Dyk each would bring legal expertise in areas frequently before the Supreme Court. Back in private practice, Judge Dyk was a sought-after advocate on First Amendment issues. He was intimately involved in the landmark case FCC v. Pacifica, which held that George Carlin's (in)famous "Filthy Words" routine was indecent but not obscene and therefore could be subject to FCC restrictions during certain hours. Similarly, Judge Bryson was the leading appellate advocate in criminal issues. He argued more than 150 cases in federal appeals courts across the nation, and he is an author of the legal treatise Grand Jury Law and Practice.
In recent years, the Supreme Court has expressed increased interest in intellectual property cases, many of which have significant consequences outside the patent arena. Such cases include Grokster (deciding inducing of copyright infringement), Illinois Tool Works (deciding that a patent doesn't necessarily confer market power for purposes of an antitrust tying analysis) and eBay v. MercExchange (reestablishing the four-factor test for issuing a permanent injunction after patent infringement). Perhaps the most significant Supreme Court patent case in recent years was KSR International Co. v. Teleflex Inc., a case which arguably has reset the bar for determining whether an invention was obvious and therefore not patentable. And, of course, the nation's business community is anxiously awaiting the court's decision in the Bilski v. Kappos, a case that may radically alter settled expectations about the scope of what types of inventions can be patented.
As our nation's economic well-being depends more on intellectual property and intangible assets, the Supreme Court must have the experience to understand these complex issues. A judge from the Federal Circuit, however, may not be high on the current insider lists. And considering the realities of current politics, nominating a judge older than 60 is unlikely-Judge Bryson is 64 and Judge Dyk is 73. But both are as sharp as ever, are two of the hardest working judges at the court and remain physically fit. (And Charles Evans Hughes was 67 when joined the Court as Chief Justice in 1930.) Judge Dyk is an avid tennis player and is known to throw a mean pitch in the summer softball league. Judge Bryson is a runner and led the Federal Circuit team to victory in the 29th Annual ACLI Capital Challenge last year.
Judge Dyk and Judge Bryson deserve serious consideration. President Obama would be hard-pressed to find a judge more erudite and gracious than Judge Bryson or one more knowledgeable about administrative law than Judge Dyk. And each judge clerked for an Obama hero-Judge Bryson worked for Thurgood Marshall, and Judge Dyk for Earl Warren. All the President need do is walk across Pennsylvania Avenue, stroll up to the ninth floor of the courthouse at Lafayette Square overlooking the White House and choose from two highly qualified jurists trained by two of Obama's judicial heroes.