Kathleen O’Malley Officially Nominated to Federal Circuit

Yesterday, the White House officially announced that Judge Kathleen O’Malley has been nominated to the vacant seat on the Federal Circuit.  Her biographical information was briefly covered last week.

In one respect, Judge O’Malley will be a first on the Federal Circuit.  The current court is made up of two former in-house corporate attorneys, two former Senate attorneys, one former member of the Solicitor General’s office, one former law professor, three members who were most recently in private practice prior to their nominations, and two former judges on the Court of Claims.  Indeed, the Federal Circuit has never had a former district court judge as a member.  Thus, Judge O’Malley should bring a fresh, new perspective to the court.

Throughout its history, the majority of Federal Circuit judges have come from either private practice (9) or government attorney positions (10), such as counsel to the Senate, the Attorney General’s office, or the solicitor’s office.  The closest the court has had to actual trial judges are former Judge Philip Nichols who was a judge on the Customs Court and current Judges Robert Mayer and Randall Rader who served as judges on the Claims Court.

Hal Wegner questions whether her perspective may change the court’s often-criticized jurisprudence of de novo review on claim construction rulings from district courts.  Under the Federal Circuit’s Cybor case from 1998, the court gives no deference to such rulings.  As a result, the court has a reversal rate of 30-50% on this issue.

Of further note is that after Judge Jean Bissell was nominated by President Reagan in May 1984, 12 male judges were nominated to the court before Judge Sharon Prost was nominated by President Bush in May 2001.  Judge O’Malley is now the third straight woman to be nominated to the court.  When confirmed, she will join Judges Newman, Prost, and Moore to comprise a third of the court’s membership.

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5 Responses to “Kathleen O’Malley Officially Nominated to Federal Circuit”

  1. » Kathleen McDonald O’Malley – Nominee for the Federal Circuit Government Accountability is a Citizen's Responsibility: Because Democracy is Not Free — we all have to work at it Says:

    [...] Inventive Step reports that if confirmed, Judge O’Malley would be the first Federal Circuit judge with previous trial judge experience.  Which, of course, means I can look up her record on federal employee discrimination cases.  In my opinion, “no comment”.  In other words, don’t expect her arrival to alter the outcome of federal employee civil service rights. [...]

  2. Edward DuMont Nominated to Federal Circuit « INVENTIVE STEP Says:

    [...] Judge O’Malley’s nomination is still pending in the Senate as well.  No date has yet been set for her confirmation hearing.  Her nomination has garnered fairly wide-spread support.  It will be interesting to see whether the bar is similarly enthusiastic about Mr. DuMont’s nomination. [...]

  3. Federal Circuit Nomination Update « INVENTIVE STEP Says:

    [...] By Matt Osenga As the Federal Circuit now sits with only 9 active judges and 3 current vacancies, Judge Kathleen O’Malley will finally get a hearing before the Senate Judiciary Committee on Wednesday [...]

  4. Judge O’Malley to be Confirmed to Federal Circuit « INVENTIVE STEP Says:

    [...] O’Malley was nominated to the Federal Circuit in March and unanimously cleared the Senate Judiciary Committee in September.  She will be the [...]

  5. Jimmie Reyna Confirmed to Federal Circuit « INVENTIVE STEP Says:

    [...] year, Judge Kathleen O’Malley was nominated to the court on March 10 and confirmed December 22, or 287 days [...]

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