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As President George W. Bush’s judge-picking operation moves into high gear, so does the bar’s interest in the open seat on the U.S. Court of Appeals for the Federal Circuit. Two judges from the U.S. Court of Federal Claims — Edward Damich and Eric Bruggink — have surfaced as possible nominees. In addition, a longtime movement to elevate a district court judge to the Federal Circuit may be gaining momentum. The Federal Circuit seat is one of 94 openings around the country, including 29 on the influential appeals courts. Bush legal advisers, who have already interviewed more than 50 lawyers for some of the slots, are expected to move quickly to take advantage of the Republicans’ one-vote majority in the Senate. The opening is “an interesting bellwether” for the Bush administration, says Douglas Kendall, executive director of Community Rights Counsel, which represents cities and towns being sued in takings cases. “Is Bush trying to please the corporate lawyers who are interested in patent law or the ideologues who are interested in takings law?” The spot opened up when Judge S. Jay Plager took senior status last November. Plager’s rulings favoring property owners suing the government under the Fifth Amendment’s takings clause made him a favorite with conservatives. Nancie Marzulla of the Washington, D.C.-based Defenders of Property Rights says her group is pushing for Damich. “Informally,” she says, “we’ve expressed our views to various decision makers.” Marzulla won’t elaborate on her lobbying, Damich did not return calls seeking comment, and the Bush administration won’t discuss names until it formally announces them. Marzulla cites 52-year-old Damich’s academic background — he taught intellectual property law at George Mason University — as his main qualification for the Federal Circuit, which is the nation’s final arbiter on patent and trademark disputes, except for the occasional case taken by the Supreme Court. Damich gains a kind of double stamp of approval by way of his tenure as chief IP counsel to Senate Judiciary Committee chairman Orrin Hatch, R-Utah. Politically, Hatch is the gatekeeper in the federal judicial nomination process. In fact, Damich’s 1998 appointment to the claims court is credited to a deal in which the Clinton White House gladly included him among six claims court nominees that Hatch promised to green-light. Damich has handled a wide range of cases at the claims court, which hears civil lawsuits against the U.S. government. All appeals from the claims court are heard by the Federal Circuit. Last year, Damich ruled in favor of an energy company claiming that the government’s breach of contract caused the company to lose money. In another case, Damich ruled against Exxon Research & Engineering Co., which had sued the U.S. for patent infringement. Damich found that Exxon’s patents were indefinite. Observers of the court have also identified Bruggink as a possible nominee. A 1986 appointee of Ronald Reagan, Bruggink, 51, is nearing the end of his 15-year term to the claims court. He declined to comment. Some of Bruggink’s rulings would no doubt please conservative followers of Plager’s takings opinions. Last year, he ordered the state of Missouri to pay landowners for converting their railroad easements into recreational trails. However, Bruggink is no rubber stamp for conservative causes. In 1996, he rejected an attempt by the state of Alaska to use the takings clause to win compensation for federal regulations that prevented oil drilling in the Arctic National Wildlife Refuge. To be sure, Damich and Bruggink are not the only potential nominees under consideration. The Federal Circuit Bar Association is set to decide this week on recommending some names to the White House, says Jerald Howe, who chairs the group’s judicial selection committee. How much influence the Federal Circuit bar will have is another matter. Last month, the Bush administration removed the American Bar Association from its traditional front-end role of reviewing the qualifications of lawyers being considered for nomination, concluding that it was unfair for any private group to have a preferential place in the judge-picking process. George Hutchinson, the longtime executive director of the Federal Circuit group, recalls that at various times during the administrations of former Presidents Reagan and Bush, the Justice Department invited the group to recommend candidates. At least one, Alan Lourie, was eventually nominated by Bush and confirmed to the bench. The Clinton administration did not request recommendations from the Federal Circuit bar. As for the current opening, Hutchinson says he’s hearing some members call for a district court judge to get the seat. “Why not?” asks Hutchinson, pointing out that in the court’s 19-year history, no district court judge has been nominated for the Federal Circuit. The court’s enabling statute requires Federal Circuit judges to live within 50 miles of Washington, meaning the president would have to pick a D.C.-area judge or a nominee who is ready to move. Based on the bar association’s recent drive to attract district court jurists as new members, some would apparently consider moving to the area. Hutchinson says more than 100 district court judges, many from tech-heavy Northern California, have joined the 2,300-member association. The bulk of its members practice in the IP area, though others handle veterans appeals, contract appeals, international trade cases, and other areas of the court’s jurisdiction. One other factor in the nominations game is whether the Senate will feel much urgency to fill Plager’s seat. When D.C. litigator Timothy Dyk was confirmed to the Federal Circuit last year, some of the 25 senators who voted against him cited the Federal Circuit’s low caseload as the reason. Sen. Jeff Sessions, R-Ala., called the court “the least-worked circuit in America” during the debate over Dyk. In an interview at the time, Chief Judge H. Robert Mayer pointed out that Congress had authorized funding for 12 judges on the court. “I believe there’s plenty of work,” he added. CHIP SHOT This week’s oral argument schedule includes a case challenging Intel Corp.’s use of its Pentium microchips, which power most of the world’s personal computers. Techsearch, a Chicago company that buys patents and then tries to enforce them, claims the Pentium series infringes on a patent it owns. The company is seeking $8 billion in damages. Last year, Senior Judge William Orrick Jr. of the U.S. District Court for the Northern District of California held that Intel did not infringe Techsearch’s patent and granted summary judgment to Intel. That decision, along with Orrick’s use of a technical adviser in making his ruling, are at issue before a three-judge Federal Circuit panel on April 2. John Janka of Chicago’s Niro, Scavone, Haller & Niro will represent Techsearch. Matthew Powers of the Silicon Valley office of Weil, Gotshal & Manges will represent Intel. SMITH MEMORIAL The Federal Circuit is working on a memorial service for Senior Judge Edward Samuel Smith, who died March 22 in Birmingham, Ala. Jan Horbaly, clerk and circuit executive at the Federal Circuit, says the court will hold the event either in Washington or in Alabama, where Smith is buried. Smith, who was 81, served on the court from its inception in 1982 until his death. He took senior status in 1989. According to the court’s published history, Smith entered the University of Virginia’s law school in 1940, but he left in 1941 to join the Navy. Smith served until 1946, earning a commendation after his ship was sunk off the Normandy coast on June 7, 1944. After law school, Smith practiced tax law in Washington, becoming the chief of the Justice Department’s tax division in 1962. He later became a tax partner and managing partner at Baltimore’s Piper & Marbury. In 1978, President Carter appointed Smith to the U.S. Court of Claims, where he served until joining the Federal Circuit in 1982.

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