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John Roberts Jr.’s likely departure from the U.S. Court of Appeals for the D.C. Circuit, where he has sat since 2003, and the arrival of two new Bush-appointed judges on that court this fall could shift the dynamic of a bench now nearly balanced between Republicans and Democrats and known for a degree of ideological restraint. With the confirmations of Janice Rogers Brown and Thomas Griffith in June, there will be six Republican and four Democratic appointees on the D.C. Circuit, often considered the second-most-important federal court in the country after the Supreme Court, in part because of its jurisdiction over challenges to federal agencies. A third Bush nominee, Brett Kavanaugh, is waiting in the wings, and the court’s three senior judges, who are sometimes called out of retirement to help decide cases, are also Republican appointees. Brown and Griffith are not expected to mirror Roberts’ urbane and politic style or, at least immediately, his reputation among lawyers as a judge intimately familiar with the world of corporate law in Washington. “To argue before somebody who had been out in the world and understands the community that we’re dealing with is a terrific thing,” says Roscoe Howard Jr., a white-collar defense attorney in Sheppard, Mullin, Richter & Hampton’s Washington office. “An awful lot of people come from sort of cloistered backgrounds. Here you have somebody who has not only represented individuals and corporations but also represented the government.” Griffith, a former Senate lawyer and private practice attorney at Wiley Rein & Fielding in Washington, has a relatively low profile in the Washington legal and political community. That makes it difficult to predict what posture Griffith, who was general counsel for Brigham Young University, will assume as a judge, say some court watchers. A former California Supreme Court justice, Brown is known for her prickly dissents and rhetorical jabs at fellow judges. That style is reminiscent of the D.C. Circuit in the 1980s and early 1990s, when it was shifting from a Democrat-dominated bench to a majority of Republican appointees, says David Vladeck, a Georgetown University Law Center professor. “They were saying nasty things to each other in footnotes,” says Vladeck. “But the current court is taking collegiality seriously, from all outward appearances.” In winning Senate confirmation of Brown and Griffith and choosing Roberts for the high court, President George W. Bush buttresses an already conservative roster of judges on the D.C. Circuit and reinforces the court’s reputation as a training ground for Supreme Court justices. If confirmed, Roberts would be the fourth former D.C. Circuit judge on the Supreme Court, following in the footsteps of Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas. And the judge most likely to follow in Roberts’ footsteps, says Andrew McBride, head of Wiley Rein & Fielding’s appellate group, is Brett Kavanaugh, who at 40 is eight years younger than Roberts was when he joined the D.C. Circuit bench. Currently the White House staff secretary, Kavanaugh has a background similar to Roberts.’ Kavanaugh’s nomination has languished in the Senate Judiciary Committee since 2003, as Roberts’ did the first time he was nominated to the D.C. Circuit in 1992. Both men worked in the Office of the Solicitor General during the administration of President George H.W. Bush — Kavanaugh as a staff attorney and Roberts as deputy solicitor general. Like Roberts, Kavanaugh also was a clerk both to a federal circuit court judge and a Supreme Court justice: Roberts for William Rehnquist, and Kavanaugh for Anthony Kennedy. Although his nomination was not targeted by Democrats for a filibuster, Senate Republicans have not shown strong outward support for Kavanaugh. The vacancy presented by a Roberts departure could jump-start Kavanaugh’s candidacy. While all eyes are on Roberts and the Supreme Court, the changing face of the D.C. Circuit should be, says McBride, a former D.C. Circuit and Supreme Court clerk, “real fun to watch.”
Lily Henning can be contacted at [email protected].

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