December 24, 2012. Richard Taranto is one of four Court of Appeals nominees blocked by filibuster. He might have a particular impact upon technology law, if confirmed.
Republican Senators remain silent in public regarding the Taranto nomination. Democratic Senators are not publicly making a case for confirmation of Taranto.
This article reviews Taranto's background and experience. It also provides information regarding why the Taranto nomination has not come up for a vote, what things might factor into Senators' voting decisions if he were to come up for a vote, and how he might affect the development of technology related areas of law if confirmed.
Outline of this article:
Introduction. Taranto has been nominated for the U.S. Court of Appeals (FedCir), which has jurisdiction over appeals from final decisions of the District Court in cases arising under the Patent Act. See, 28 U.S.C. § 1295. These cases also often include copyright, antitrust, and other technology related claims.
The Federal Circuit also has jurisdiction over appeals from the U.S. International Trade Commission (USITC), including in Section 337 intellectual property import cases (19 U.S.C. § 1337). It also has jurisdiction over appeals from the U.S. Court of International Trade. It also has jurisdiction over appeals from the U.S. Patent and Trademark Office's (USPTO) Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB).
Thus, the Federal Circuit is particularly important for the development of technology related areas of law.
Most judicial nominees who fail to win confirmation are tripped up by their prior written opinions, speeches, or articles regarding topics on which the federal courts have issued controversial opinions that are of interest to large segments of the public because of religious or ideological views. These controversial judicial issues include the regulation of abortion, government involvement with religion, racial preferences, and laws that either favor or disfavor same sex activities or associations.
However, since the Federal Circuit's jurisdiction is based upon subject matter, rather than geographic territory, it almost never decides any of these controversial cases. Hence, the views and prior statements of nominees for the Federal Circuit on these issues are of less interest to Senators, and the interest groups that lobby the administration and Senate on judicial selection.
As Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), pointed out in a speech in the Senate, "The Federal Circuit has never been controversial before." See, Congressional Record, June 18, 2012, at Page S4228.
Nominees for the Federal Circuit often shoot through the Senate confirmation process, without opposition or delay. The last two nominees to win confirmation each did so in about three months.
President Obama nominated Judge Evan Wallach on July 28, 2011. The SJC held a hearing on September 7. The SJC approved him on October 6. The full Senate approved him on November 8, by a vote of 99-0. See, Roll Call No. 199.
President Obama nominated Judge Jimmie Reyna on January 5, 2011. The SJC held a hearing on February 16. The SJC approved him on March 10. The full Senate approved him on April 4 by a vote vote of 86-0. See, Roll Call No. 47. (Actually, he was first nominated on September 29, 2010, but this was just before the 2010 elections. President Obama promptly re-nominated him at the outset of the 111th Congress.)
Nevertheless, while Taranto is a commercial appellate lawyer with vast experience in patent, telecommunications and antitrust law, he has also written amicus curiae briefs for the Supreme Court advocating gay rights.
Taranto's resume includes an elite education, prestigious clerkships (including with Robert Bork and Sandra O'Connor), and a stint in the Department of Justice's (DOJ) Office of the Solicitor General (OSG). For two decades, many large companies have entrusted him with some of their most critical and complex appellate cases. In many cases, he has produced outstanding results for his clients.
He has demonstrated vast understanding of patent, copyright, antitrust, and communications law, and an unsurpassed ability to develop and execute appellate strategies. One would be hard pressed to identify any other person nominated by either Obama or Bush for any Court of Appeals with greater expertise in a broad array of technology related areas of law.
It is a responsibility of Sen. Leahy, as the senior Democrat on the SJC, to win Senate confirmation for the nominees of a Democratic President. Sen. Leahy speaks often at SJC meetings, on the Senate floor, and in written statements about judicial nominations. He has often urged confirmation of Taranto. Sen. Leahy has touted him as "qualified", a "consensus" nominee, and having "bipartisan" support.
However, these are words that Sen. Leahy applies to any nominee of President Obama who has been stalled by Republicans. What may be notable is that while Sen. Leahy has mentioned Taranto often, it has usually only been to add him to a list of Court of Appeals nominees awaiting votes. Sen. Leahy does not elaborate on Taranto's merits. The phrase, damn with faint praise, might be applicable.
In addition, while Sen. Leahy has often stated that there is a Republican filibuster of Taranto, Republican Senators remain steadfastly silent in public regarding this nomination. No Republican Senator criticized him at his confirmation hearing. No Republican Senator has spoken critically of him in the Senate. Indeed, Sen. Leahy has asserted that Taranto "faces no Republican opposition". See, Congressional Record, December 21, 2012, at Page S8375. (Sen. Leahy probably intended to convey the thought that no Republican has publicly expressed opposition.)
Sen. Leahy has also said this: "How else to explain their adamant refusal to consider the nomination of Richard Taranto to the Federal Circuit, when the Judiciary Committee had seven of the eight Republican Senators voting for him? One, Senator Lee, cast a ``no´´ vote but said it was a protest on another matter. But every single Democrat voted for him." See, Congressional Record, December 5, 2012, at Page S7445.
Senate Judiciary Committee Consideration. President Obama nominated Taranto on November 10, 2011. The SJC held a hearing on February 29, 2012. The SJC approved Taranto on March 29.
As with all nominations, the SJC sent Taranto a form questionnaire. He provided questionnaire responses. Also, after the hearing, Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, sent him further written questions, to which he provided written answers.
Sen. Al Franken (D-MN) presided at the hearing, and asked only softball questions. Sen. Leahy did not participate. Only two other Senators did, Sen. Grassley and Sen. Mike Lee (R-UT). There was only one round of questions.
Sen. Lee spoke about methods of interpretation, and asked only easy questions. Taranto said that "I don't have a settled judicial philosophy".
Sen. Grassley expressed no opposition or criticism, but asked probing questions about two topics -- interpretation of federal Whistleblower Protection Act (WPA), and the Defense of Marriage Act (DOMA).
Sen. Grassley sited his long time interest, and role in enacting, whistleblower protection legislation. He said that "I have always pushed for strong whistleblower protection for federal employees". Sen. Grassley added that the Federal Circuit has jurisdiction here.
The Federal Circuit has jurisdiction over appeals from the U.S. Merit Systems Protection Board, which, among other things, adjudicates claims brought under the federal WPA.
Sen. Leahy added that the Federal Circuit almost always rules against whistleblowers. He said that "there has got to be something wrong". He complained in particular about the Federal Circuit's 1999 opinion in LaChance v. White.
It is unlikely, however, that Taranto's views regarding the WPA could be the basis for opposition to his confirmation, because he has never been involved in any WPA case. Taranto stated at the hearing, "I have not had any experience under that particular Act".
Defense of Marriage Act. In contrast, Taranto does have a written record that is relevant to the DOMA.
The Congress enacted the DOMA in 1996. It is Public Law No. 104-199. It defines marriage for federal purposes as a relationship between one man and one woman. States remain free allow same sex marriages, but no state is required to recognize a same sex marriage of another state.
The DOMA provides that "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife."
It also provides that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
There have been numerous legal challenges to this statute. The Supreme Court granted a petition for certiorari, in Windsor v. US, Sup. Ct. No. 12-307, on December 7, 2012. At issue is the constitutionality of the definition of marriage. See, order.
Also, despite the Constitution's mandate that the President "shall take Care that the Laws be faithfully executed" (Article II, Section 3), the Obama administration has announced that the Department of Justice (DOJ) will not defend this statute. See, February 23, 2011 letter from Attorney General Eric Holder to Rep. John Boehner (R-OH).
The Federal Circuit has not ruled on the constitutionality of the DOMA. However, there are scenarios under which it hypothetically might. For example, the Federal Circuit has jurisdiction over appeals from the U.S. Court of Appeals for Veterans Claims. A benefits claim brought by a same sex spouse of a veteran could end up before the Federal Circuit.
Sen. Grassley asked Taranto questions at the confirmation hearing, and later in writing, about the DOMA. Taranto said that it would not be appropriate for him to discuss legal issues that might come before the court. When Sen. Grassley asked if it would appropriate to apply the rational basis test in challenges to the DOMA until the Supreme Court sets a precedent, Taranto provided a non-responsive answer. Taranto provided other non-responsive answers to other questions.
Although, judicial nominees typically refuse to discuss legal issues. Justice Scalia famously refused to express an opinion at his confirmation hearing in 1986 on whether Marbury v. Madison (1803) remains good law.
Taranto has been involved in constitutional challenges to other same sex statutes, in his capacity as amicus counsel to the American Psychiatric Association (APA).
He co-wrote an amicus curiae brief on behalf of the APA and other psychology related groups in Romer v. Evans, Sup. Ct. No. 94-1039, in support of the respondents, homosexuals and municipalities who challenged a constitutional amendment adopted by popular referendum in the state of Colorado.
It provided that neither the state nor any of its agencies or political subdivisions "shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."
The Supreme Court held this unconstitutional in 1996. See, opinion, also reported at 517 U.S. 620.
Taranto also co-wrote an amicus brief on behalf of the APA in Lawrence v. Texas, Sup. Ct. No. 02-102, in support of petitioners, two gay men who challenged the constitutionality of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The Supreme Court held that statute unconstitutional in 2003. See, Supreme Court opinion, also reported at 539 U.S. 558.
Those who challenge the constitutionality of the DOMA now rely primarily on the Supreme Court's opinions in Romer v. Evans and Lawrence v. Texas.
Taranto's work in these two cases may serve as the basis for some opposition to his appointment to the Federal Circuit. Some Senators may believe that his prior briefs serve as a predictor of how he would rule on challenges to the constitutionality of the DOMA if he were confirmed.
However, some Senators may also hold additional related concerns. It may also be the case that some Senators believe that some of the same people in the White House Counsel's Office, and at the DOJ, who were involved in the decision not to defend the DOMA, were also involved in the decision to appoint Taranto to the Federal Circuit. That is, they associate his nomination with the affront of the refusal to enforce a Congressional statute; moreover, his appointment smacks of packing the courts with the object of overturning a statute.
MGM v. Grokster. Taranto has also been involved in numerous high profile, policy setting setting cases in technology related areas of law that might concern some Senators, and give certain organized interests reasons for lobbying Senators not to confirm him.
For example, in 2005 he represented Grokster before the Supreme Court in MGM v. Grokster. The movie and record industries therefore have reason to oppose him.
See, story titled "Supreme Court Hears Oral Argument in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,106, March 30, 2005. The Supreme Court ruled against Grokster. See also, opinion [55 pages in PDF], also reported at 545 U.S. 913, and story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.
Verizon v. Vonage. Taranto has also worked on patent appeals of an unusual nature that may give rise to concerns about his nomination. For example, he represented Verizon in both the U.S. District Court (EDVa) and Federal Circuit in Verizon v. Vonage, a patent infringement case that played out in the District Court and Federal Circuit in 2006 and 2007.
The relief that he won for Verizon is testament to his extraordinary legal skills. But, the underlying nature of that action might give some pause.
The patent system exists to create financial incentives to invent and innovate, and ultimately, to provide the public with the fruits of that innovation. Yet, in that case Verizon wielded patents, as an incumbent service provider, to limit competition from a new entrant with a new and innovative business model.
Verizon exposed itself to criticism that it abusively asserted patents in an anti-competitive manner. Verizon benefited financially from that victory, but it was not Verizon's finest hour.
Taranto has also represented Verizon, and its predecessor companies, in numerous other court cases and antitrust merger review proceedings. For example, he represented Verizon in Verizon v. Trinko, 540 U.S. 398 (2004).
Verizon's current status as a lightening rod for some of the critics of concentration in the communications market, and federal regulatory policy, might affect some people's opinions regarding its attorneys.
It might be noted too that President Bush nominated another attorney with sterling credentials for the DC Circuit, who had represented the other large phone company, AT&T. That nomination also languished in the Senate without a vote.
SSO Deception. Taranto also represented Rambus in some of the many proceedings relating to its participation in the JEDEC standards setting process and later assertion of patent rights. Once again, Taranto delivered superlative results for his client.
Rambus participated in a standards setting process that set DRAM industry standards. Rambus did not disclose to the standards setting organization (SSO) that it had patent claims in technologies that were standardized. It then asserted these patents. Other companies alleged fraud, deception and violation of antitrust laws.
Taranto represented Rambus before the Federal Circuit in Rambus v. Infineon, 318 F.3d 1081 (2003). See, story titled "Federal Circuit Rules in Rambus v. Infineon" in TLJ Daily E-Mail Alert No. 594, January 30, 2003.
There is another twist. While the majority ruled for Rambus, Judge Sharon Prost dissented. She wrote that "The record is replete with additional and specific instances of Rambus employees attending JEDEC meetings, taking notes of what was discussed, identifying instances where Rambus already had claims covering what was discussed, and then seeking claims to cover what they learned at the JEDEC meetings. Yet Rambus ``did not tell the people at JEDEC that what they were proposing for standardization infringed [its] patents.´´"
Prost was previously a Republican SJC staff member, and right hand assistant to Sen. Orrin Hatch (R-UT), who remains on the SJC.
Taranto also represented Rambus in Samsung v. Rambus, 523 F.3d 1374 (2008), and in Hynix Semiconductor v. Rambus.
More Landmark Cases. Taranto also wrote an amicus curiae brief for state of New Jersey, in support of the state of North Dakota, in Quill v. North Dakota.
The Supreme Court ruled in its 1992 opinion, reported at 504 U.S. 298, that state and local taxing authorities are barred under the Commerce Clause from requiring remote sellers without a substantial nexus to the taxing jurisdiction to collect sales taxes for sales to persons within the jurisdiction. While that case involved catalogue sales, the same principle applies to online sales.
Quill is one of the cornerstones of internet freedom and electronic commerce. It is also under constant assault by state tax collectors who want the Congress to enact legislation authorizing them to tax out of state online businesses. See, story titled "House Judiciary Committee Holds Hearing on Internet Sales Tax Bill" in TLJ Daily E-Mail Alert No. 2,410, July 24, 2012.
Taranto also wrote an amicus curiae brief in support of the respondent state in Seminole Tribe v. Florida, Sup. Ct. No. 94-12. See, 1996 opinion, reported at 517 U.S. 44.
This case involved the Indian Gaming Regulatory Act and the Indian Commerce clause of the Constitution. The Court held that the Congress lacks authority under Article I of the Constitution to abrogate the states' 11th Amendment immunity from suit in federal courts. However, its holding regarding the abrogation of state sovereign immunity serves as the precedent for similar cases involving intellectual property. See, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).
In short, this series of 5-4 opinions from the Rehnquist led majority established the principle that states are free to steal other people's intellectual property.
As a result of these cases, states can hold intellectual property, and enforce their intellectual property rights in federal court. At the same same, states are in effect free to steal the intellectual property of others, without fear of a money judgments against them. Some states infringe intellectual property rights, hide behind 11th Amendment immunity, and lobby their Senators to block legislation that would remedy this situation.
The Quill opinion enjoys strong support from a broad range of technology companies, trade groups and think tanks. The state intellectual property immunity cases have been widely criticized in the tech sectors. Of course, many state governments hold contrary views. However, the salient point for this article is that Taranto was on the anti-technology side on both issues.
Sponsorship. Finally, there is the importance of having a sponsor in the Senate. The outcome of a controversial nomination can turn on whether the nominee is backed by a Senator who is making periodic speeches in the Senate on behalf of the nominee, talking to journalists, and constantly calling and cornering colleagues asking for their support.
For the recently confirmed Judge Wallach, there was Sen. Harry Reid (D-NV), the Senate Majority Leader, who delivered a personal appeal for his confirmation at his hearing on September 7, 2011.
Judge Reyna was promoted by Sen. Benjamin Cardin (D-MD) and Sen. John Cornyn (R-TX), both of whom testified at his confirmation hearing on February 16, 2011.
Taranto, in contrast, was conspicuously alone at his confirmation hearing on February 29, 2012. He had no Senate sponsor to introduce him and urge the Committee to confirm him.