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Edward DuMont Federal Circuit Nomination Stuck in Senate Limbo

By Robyn Hagan Cain on August 30, 2011 4:05 PM

How long would you wait for a job interview?

If you would give up on a potential gig after only 15 months, you don't have the patience to wait for a seat on the Federal Circuit Court of Appeals.

President Barack Obama nominated Edward DuMont for the bench on April 14, 2010. DuMont has been waiting in judicial limbo ever since, while three other judges who were nominated after DuMont - Fifth Circuit Judge James Graves, Second Circuit Judge Susan Carney, and Federal Circuit Judge Jimmie Reyna - have already been confirmed.

DuMont, a partner in WilmerHale’s Litigation/Controversy Department and a member of the Appellate and Supreme Court Litigation Practice Group, has argued 18 cases before the Supreme Court. He’s no stranger to the Federal Circuit either, arguing numerous patent cases before the circuit.

DuMont has support across the ideological spectrum: from conservative jurists like the Seventh Circuit’s Richard Posner to libertarian academics like Eugene Volokh, everyone seems to think that DuMont is brilliant.

So what’s the holdup?

It’s probably rooted in conservative apprehension that DuMont will be too liberal because he’s openly gay. If confirmed, DuMont would be the first openly gay federal appellate judge.

It’s critical for Federal Circuit nominees to be familiar with the circuit, as it is the only appellate circuit that has nationwide jurisdiction. Federal Circuit issues include international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans’ benefits, and public safety officers’ benefits claims. DuMont has extensive experience with these subjects that would serve him well on the bench. This seems like a no-brainer, even for Congress.

DuMont would be a distinguished addition to the bench. But regardless of whether the Senate chooses to confirm his appointment, DuMont deserves a hearing. If members of the Senate really believe that Edward DuMont’s personal life would impede his ability to effectively carry out his duties, they should at least be willing to say that out loud on C-SPAN, rather than hiding behind Senate process.

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