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.