Could Obama Win Boost Fogel Shot at Federal Circuit?

Judge Jeremy Fogel

Judge Jeremy Fogel

The re-election of President Barack Obama could be an opening for the nomination of former San Jose U.S. District Judge Jeremy Fogel to the patent-centric Federal Circuit Court of Appeal in DC.

The Federal Circuit has two vacancies but only one nominee who has been waiting in the Senate wings for confirmation since November 2011.  A new vacancy, created by Judge Richard Linn, occurred just a week ago and no name has been put forward for the opening.  In addition, Judge William Bryson is set to take senior status on Jan. 7, 2013, opening another vacancy on the Federal Circuit.

Fogel has long been touted as a potential addition to the Federal Circuit because he’s smart, hard working, actually likes working on patent cases, and has years of experience toiling in the heart of Silicon Valley’s high tech patent battles.

Another point in his favor has been years of pushing by the patent bar to get a sitting federal judge on the intellectual property court.

The drawback for Fogel in the past was that he lived out West and generally judges for the Federal Circuit come from the east or it provides a feeder court for Senate judiciary staffers.

Fogel cured his West Coaster problem by taking over as head of the Federal Judicial Center in 2011, packing up and leaving San Jose for DC.

The Center provides research and develops education programs for 15,000 judges and court employees in the federal court system.  It also gives Fogel national exposure and close proximity to the country’s political heart.

Federal Circuit

The appeals court gets most of its attention from high-profile patent cases, but the IP cases are roughly 40 percent of the caseload while the remaining 60 percent comes from administrative law and suits against the federal government seeking money damages.

It also reviews appeals from the Merit Systems Protection Board, basically personnel disputes by federal employees, and veterans affairs issues stemming from military service-connected benefits or compensation claims.

Fogel’s History

Judge Fogel was appointed to the Northern District Court by President Bill Clinton in 1998 after a stint as a state court judge in Santa Clara County (San Jose).  He was appointed to the state municipal bench by Gov. Jerry Brown, during Brown’s first tenure as governor in 1981.  Republican Gov. George Deukmejian elevated Fogel to superior court in 1986.

He received his law degree from Harvard Law School in 1974 and his undergraduate degree from Stanford University in 1971.

Clearly there are other potential candidates for the Federal Circuit, but Fogel’s name has popped up over the years when vacancies have opened.  Maybe this is his year.

Other Openings

Overall, Obama has 82 judicial openings to fill, with 15 on courts of appeal and 65 on district courts and two on the International Court of Trade.

That doesn’t include another 19 judges who have indicated they will take senior status at the end of this year or during 2013.

In the West, the 9th Circuit Court of Appeal has only one vacancy and that was created by Judge Stephen Trott in 2004.  It has never been filled due to squabbling U.S. Senators.  The dispute is whether a new nominee should come from Idaho, where Trott lives, or from Southern California, where his nomination originated.

There are 16 district judge vacancies in western courts of the 9th Circuit, with three more expected early next year. A dozen of those openings come from California’s four district courts.

Two nominees for Northern District openings who fell by the wayside when the Senate failed to act before the election were William H. Orrick III and Jon S. Tigar.  Obama’s re-election could mean their names go back in the hopper.

Stay tuned.



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