On Tiffany Cunningham’s Appointment to the CAFC: An Impeccable Candidate and a Rallying Call for More Diversity in IP

By Emer Simic
July 11, 2021

“Unlike the majority of the current Federal Circuit bench, Cunningham has almost 20 years of IP litigation experience representing industry giants including Intel, Microsoft, Amazon and Panasonic in federal courts…. [This should] inject a practical perspective and enhance the Court’s understanding of the client interests at stake in these cases.”

Tiffany CunninghamOn March 30, 2021, President Biden tapped Tiffany Cunningham to be the first African American to sit on the Federal Circuit. After a straightforward and speedy hearing, the Senate Judiciary Committee later advanced Cunningham’s nomination with a 16-6 vote. With her confirmation now imminent, Cunningham is poised to become the first African American, and the first African American woman, to join the Federal Circuit bench. Now that she has reached this historic milestone, this article reflects on the significance and impact of Cunningham’s nomination.

‘History Maker’

Senator Cory Booker described Cunningham as a “history maker” and an “extraordinary human being by any measure.” And she is. Cunningham, a registered patent attorney and intellectual property litigator, has been a partner at Perkins Coie since 2014 and currently serves on the firmwide Executive Committee. Prior to that, Cunningham served as a partner and associate at Kirkland & Ellis LLP and also clerked for Federal Circuit Judge Timothy Dyk. Cunningham has had a storied career serving as trial and appellate counsel in complex patent and trade secret disputes involving myriad technologies, including pharmaceuticals, computer science, and automotive and mechanical engineering. With a law degree from Harvard and a degree in chemical engineering from the Massachusetts Institute of Technology, Cunningham’s legal and technical credentials are impeccable.

Although undeniably a highly successful litigator, Cunningham told the Senate Judiciary Committee that joining the Federal Circuit has long been her “dream job.” In the same breath, Cunningham noted that, while clerking for Judge Dyk, she was confronted with the Federal Circuit’s lack of diversity with “all white judges and only two women.” But Cunningham was not discouraged and instead placed obtaining the role on her “mental vision board” in hopes “that one day [she] could be a judge of that Court.”

It would take 20 years for Cunningham to realize her dream—the Federal Circuit being the last U.S. federal court of appeals to gain its first African American judge. Senator Booker lamented this belated progress during Cunningham’s confirmation hearing when he expressed a “sense of exhaustion and exultation” that we are still counting “the first black person” to reach a particular milestone after 250 years of American history. Like the Federal Circuit bench, the intellectual property (IP) bar that appears before it has been sorely lacking in diversity—only 1.8% of all IP attorneys are African American according to 2017 data from the American Intellectual Property Law Association (AIPLA). As for African American women practicing IP law, alarmingly, this author could find no reported data whatsoever. Thus, although Cunningham’s nomination is a welcome and deserving “first,” it spotlights a 40-year dearth of diversity on the Court and a chronic shortage of African American women lawyers in the IP bar.

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Gender Parity for the CAFC

Cunningham’s confirmation is also notable in that it adds another woman to the federal bench. Fortunately, the Federal Circuit has made great strides in gender diversity since Cunningham’s days as a law clerk—nearly half of the Federal Circuit’s judges are women, including current Chief Judge Kimberly Moore. The Court will achieve complete gender parity with the addition of Tiffany Cunningham. Beyond the bench, there has also been significant progress in improving gender diversity in IP law positions at the United States Patent and Trademark Office—recent reports estimate that 38% of PTAB judges are women. The IP bar, however, cannot boast similar statistics. According to the AIPLA, women comprise about 30% of IP attorneys (including patent, trademark and copyright) at law firms (J. Shontavia Johnson, Tonya M. Evans, and Yolanda M. King, “Diversifying Intellectual Property Law: Why Women of Color Remain ‘Invisible’ and How to Provide More Seats at the Table, 10 Landslide 4, 31 (2018)). However, the American Bar Association reports that only 21.8% of registered patent attorneys are women (Elaine Spector and LaTia Brand, 13 Landslide 1, (2020)). The numbers are worse when we consider the percentage of women in law firm leadership. Only 19% of equity partners across all areas of law are women. And, over the last decade, women argued only 12.6% of all patent appeals before the Federal Circuit and less than 10% of patent appeals on behalf of private entities. Even worse, the proportion of women arguing such appeals is trending downward: from 2014-2016, women presented nearly 20% of all oral arguments before the Federal Circuit, but by 2017-2019 less than 14% were argued by women.

President Biden appears to have recognized this diversity crisis in the law, and in his first four months has nominated as many minority women to the federal bench as President Trump over his entire presidential term. Fifteen of his 19 nominees so far are women, including 11 women from diverse racial and ethnic backgrounds. And of Biden’s seven nominees for the U.S. Courts of Appeals, six are women, four are ethnic minorities, and three are African American. Biden has also pledged to nominate the first African American woman to the Supreme Court. But executive action to increase diversity in the judiciary will not remedy the absence of diverse candidates in the judicial pipeline.

Law Firms Lag on Diversity

Although most major law firms and clients have invested in diversity programs, the statistics suggest that such efforts have not paid off in producing more diverse law firm leadership, particularly in IP law. We must do more. Tiffany Cunningham’s elevation to the Federal Circuit can and should inspire law firms (and their clients) to make sure that diverse lawyers obtain more experience in senior litigation roles, including making arguments before district and appellate courts. We also owe a responsibility to better educate diverse students about the opportunities that STEM degrees can provide, including opportunities in patent law. And the courts can support these efforts. For example, the Federal Circuit recently reversed its order to decide an appeal on the briefs to provide a junior diverse attorney an opportunity at oral argument. Google and its attorneys had requested that the Court reconsider its order because the most knowledgeable attorney was a Perkins Coie associate who “ha[d] not previously argued a Federal Circuit appeal” and Google and its outside law firms . . . are collaborating to increase participation by . . . junior and diverse lawyers in their appellate matters.” Further instances of this type of public-private teamwork are needed to provide meaningful opportunities for diverse IP lawyers.

Getting Practical

In addition to bringing some much-needed diversity to the bench, Cunningham’s legal background will enrich courts in other important respects. Unlike the majority of the current Federal Circuit bench, Cunningham has almost 20 years of IP litigation experience representing industry giants including Intel, Microsoft, Amazon and Panasonic in federal courts. She also has experience with Hatch-Waxman litigation, having successfully represented ViiV Healthcare in a case brought against generics, Lupin and Teva. Since the lion’s share of Federal Circuit appeals are patent disputes, Cunningham’s real-world experience in that arena should inject a practical perspective and enhance the Court’s understanding of the client interests at stake in these cases. With a degree in chemical engineering from MIT, Cunningham also adds another technical background to a court that is heavy on electrical engineers. The addition of a chemical engineer with practical experience litigating pharmaceutical cases should also assist with resolution of the large number of Hatch-Waxman appeals that come before the court.

As for Cunningham’s likely impact on Federal Circuit jurisprudence, her confirmation hearing unsurprisingly provided few hints. When questioned on her views on a handful of hot topic patent issues, Cunningham carefully repeated that she would apply the law faithfully to the facts of each case before her. She did, however, hint at her “general” view on certain issues.

Senator Grassley asked Cunningham if she thought it is appropriate for District Judges to actively create favorable patent venues in their districts. The Senator’s comment was likely aimed at judges in patent litigation hotspots in the Western and Eastern Districts of Texas who attract vast numbers of patent cases and recently generated headlines for delaying and denying motions to transfer. Cunningham responded that district court judges “should be focused on applying the law to the facts of each case without [] taking into consideration [] what sorts of cases they might want to appear before them.” This comment suggests that Cunningham may agree with the Federal Circuit’s recent rebukes of Judge Alan Albright’s refusal to transfer a number of patent cases out of the Western District of Texas.

Also interesting was Cunningham’s response to Senator Coombs’ question about whether the Federal Circuit should clarify the standard for patent eligibility under 35 U.S.C. §101. Cunningham offered that the “area deserves attention,” and noted that the Supreme Court is currently considering taking this issue up (in American Axle v. Neapco), hinting that she, along with much of the current Federal Circuit bench and the broader patent community, would like clarification on Section 101 from the nation’s highest court. Notably, Cunningham has real-world experience with Section 101 issues—in 2015 she defended drug screening method patents against a summary judgment motion of invalidity under Section 101.

Don’t Let Her Be the Last

How Cunningham will actually rule on these and other substantive patent law issues remains to be seen. What is certain is that Cunningham’s nomination provides national stage visibility of an exceptionally well-qualified and diverse lawyer filling a high-profile judicial post. Although a cause for celebration, this momentous occasion should not be wasted in self-congratulation but rather should provide momentum for further public and private efforts to increase diversity at the most senior echelons of the IP bar. Without a ready supply of diverse and qualified candidates, we remain in danger of this important “first” becoming a “last.”

 

The Author

Emer Simic

Emer Simic is a partner at Neal Gerber Eisenberg and focuses her practice on pharmaceutical patent litigation, post-grant review, opinions and client counseling.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 74 Comments comments. Join the discussion.

  1. Golden Mile July 11, 2021 2:54 pm

    Ok … so what are her views on, well, anything? Like this is all well and good but this article has very little on what she actually believes, other than general statements all judges make strained to fit one narrative or another.

    Diversity is a thing to note but it doesn’t take precedent over knowing how to do your job and what that will look like, and I am not sure about any of that reading this.

  2. Anon July 11, 2021 4:23 pm

    Hooray on a selection of what appears to be a highly qualified individual.

    Boo on the PC virtue signaling.

    (one should realize that the current state of PC would revile this piece as only including a binary representation of gender)

  3. Anon July 11, 2021 5:13 pm

    “With a law degree from Harvard and a degree in chemical engineering from the Massachusetts Institute of Technology, Cunningham’s legal and technical credentials are impeccable.”

    So? If we want a more diverse court, we have to stop putting so much weight behind the name of universities. Many a brilliant person received similar legal and scientific training from state schools or otherwise. If you want to improve diversity, stop focusing on plucking people from the most elitist institutions in the country. Many, many minorities and women lack the support system needed from birth to attend one of these schools.

  4. Curious July 11, 2021 11:21 pm

    Anon — agree on both accounts. Actually — on all three accounts.

    the American Bar Association reports that only 21.8% of registered patent attorneys are women
    We’ve addressed this on this blog some time ago. This number reflects the number of woman with engineering degrees, which very likely reflects the number of woman entering engineering school. If you want to raise any of those numbers, then go into the high schools and start talking to the kids therein. Absent a greater interest in engineering by woman at the high school level, you aren’t going to see any significant changes in those numbers.

    This article contains 23 mentions of the term “diversity” (or some variation thereof). Can someone explain to me why “diversity” has any value in practicing intellectual property law — the application of which has been color blind as best as I could tell. As best I can tell, “diversity” is just a more PC way of saying a “quota.” This is coming from someone who was accused of being “woke” just a few articles ago.

    Ms. Cunningham appears to be an exceptionally-qualified candidate for the Federal Circuit — and it has NOTHING to do with the color of her skin or her gender.

  5. Captain Nemo July 12, 2021 5:46 am

    Gosh, Anon and Curious– your comments are such a breath of fresh air in the midst of the increasingly relentless flood of PC “you better agree… or else” groupthink. “Hooray on a selection of what appears to be a highly qualified individual. Boo on the PC virtue signaling.” Precisely!!

  6. Anon July 12, 2021 12:29 pm

    Just a general note – while I agree with some of what my same-named commentator stated in regards to “Elitist” schools, that post is not by the usual “Anon.”

    As with most things “Academic,” there is a real (typically not stated) problem which is often exacerbated with Coastal elites.

    While a generalization, the “fly-over lands” tend to have a more diligent work ethic and a “do something real” sense that is a pleasure to see reflected in innovation.

    The Coastals are prone to downplay the attributes and views of the Fly-Overs — to the detriment of all.

  7. Max Drei July 12, 2021 12:34 pm

    Putting aside gender and skin colour, and what the new judge might or might not “believe”, all of which strike me as totally irrelevant and a nuisance distraction, what strikes me is that this person has a university degree in chemical engineering. And not from just any institution doling out certificates but from MIT. I don’t know any university in the world that issues certificates of graduation as an engineer that deservedly carry more cachet than one from MIT.

    What I’m used to, as a patent attorney in Germany and England, is judges with science or engineering degrees, able to understand the subject matter they purport to judge. All through my long career, I have seen it as unfortunate, that patent disputes in the USA are judged by courts (and indeed juries) with no such credentials, assisted by attorney advocates with no such credentials. I’m therefore astonished, flabbergasted even, by this appointment and I wish the newly-appointed judge a long and satisfying career at the CAFC.

  8. Model 101 July 12, 2021 1:57 pm

    I applaud this selection! I wonder, though, what race and gender have to do with any judicial appointment. Character, integrity, honesty, intelligence, education, and other virtues are what matter. Right now, we have a couple of Judges who lack some or all of these qualities.

    Please realize this your honor. Things need to change!

  9. PTO-indentured July 12, 2021 2:50 pm

    In consideration of ‘diversity’ — in addition to PC and Woke metrics

    I thought I’d share some thoughts, that adds to and hopefully uplifts our consideration of diversity. These came to mind this morning mostly in the form of questions:

    Should we surmise that all selections of what appeared to be highly qualified individuals for the FC — until as late as mid-2021 — and never including an African American — was merely coincidence? That no African American ever being considered suited for the FC until mid-2021, had ‘nothing to do with the color of her skin or her gender’? More particularly, that prejudice(s) could never have come into play?

    In addition to what may be framed as PC or Woke (or not) can we consider that the meaning of diversity might also include the ‘opposite of sameness’ or words to that effect?

    Did certain advances in gender-specific rights occur as a result of having a woman on the Supreme Court? Was that merely coincidental? Were her efforts welcomed, or does history show that her efforts were almost always uphill battles, that forced her to take deliberate, resolute and well thought out stands? Is not such a Court makeup more ‘diverse’ versus less diverse, was it not better for it, versus worse? Was the Harvard Law School (when she attended) formerly better because only men could be students, lawyers, then judges? Of course not. Women working within the legal system have been crucial to advancing progress beneficial to women and society, as have African Americans (and others) for themselves and society as a whole. Are these not a form of diversity in action — in legal systems?

    How is the practice of intellectual property law in the U.S. today faring in terms of welcoming African Americans and women into the ranks of inventors — who honestly, please — have a fair shot at their new patents holding up post-grant, against big business and their prized golden egg: ‘efficient infringement’. How diverse, might we guess, was the ‘brain trust’ who for this century-to-date, devised and still perpetuates a lock-grip hold on a lamentably unfair double-standard patent system (who brought and sustained us the likes of SAWS and AIA)? Want more of that sameness?

    Is it inconceivable that an apparent-welcoming, of those formerly left out, and currently most susceptible to further PTO enabled injustices and prejudices, could also have a beneficial influence in the righting of this longstanding imbalance? If given more of a chance, could they not also ’take a stand’ (like that of a female Supreme Court justice) to support issues that they might have a more acute awareness of?

    Surely being more welcoming to those we can see, and know, have been left out, (or in the PTO’s post-grant wake, been or are supremely disadvantaged), and this would not preclude an ongoing ‘selection of what appears to be highly qualified individuals’ — where such selections can certainly be done deliberately, thoroughly and thoughtfully beyond the constraints of what is considered PC, Woke, Left or Right.

    Closing thought: regarding a degree of women (or anyone) currently in the field of intellectual property law — at the risk of stating the obvious. Often, when growing up, we tend to ‘see our world’ and its future possibilities by what we can ‘see on our own radar screen’ i.e., what is most familiar to us, and repeatedly so. It is much easier to emulate what we see, or see modeled and exemplified, than what we don’t see. If I see judges, or panels of judges that are dominated by men, or even ‘white men’, or any of these making up members of my own family, repeatedly, that can set an expectation of what’s possible / foreseeable / attainable for me. Those things not on my radar screen, or only on it intermittently, or appearing much later in life, won’t have the same pull, influence and impact. The same dynamic can occur with parenting, their example, as well as what they outright ’teach’ us. Not making efforts to proactively (and reasonably) adjust this its-on-your-radar-or-not dynamic, leaves an important advancement potential — that can be accelerated — to chance, or worse, to a slow self-correcting kind of lottery. Can there be a better way of going about and promoting this advancement? Can we do better? I believe we can, to an extent it is our and decision-makers’ radar screens — and effective efforts are made to put it into action.

    OK, I’m ducking now for daring to mention ‘PC’ and ‘Woke’ 🙂

  10. B July 12, 2021 2:57 pm

    @ Golden Mile “Diversity is a thing to note but it doesn’t take precedent over knowing how to do your job and what that will look like, and I am not sure about any of that reading this.”

    Talk like that gets you called “racist” by a certain few.

    @ Max Drei “I have seen it as unfortunate, that patent disputes in the USA are judged by courts (and indeed juries) with no such credentials, assisted by attorney advocates with no such credentials. I’m therefore astonished, flabbergasted even, by this appointment . . . ”

    Judge Pauline Newman – PhD – Chem E
    Judge Kelly Moore – MS EE (MIT)
    Judge Raymond Chen – BS EE
    Judge Kara Stoll – BS EE
    Judge Alan Lourie — MS Chem
    Judge Richard Linn – BS EE

    Half the CAFC have relevant technical degrees.

    Hughes, Prost, and Reyna are “diverse.”

    @ Curious “This article contains 23 mentions of the term “diversity” (or some variation thereof). Can someone explain to me why “diversity” has any value in practicing intellectual property law.”

    Good question.

    @ Anon “So? If we want a more diverse court, we have to stop putting so much weight behind the name of universities.”

    Technically, yes, but we all know that “diversity” doesn’t extend to diversity of thought and a lot of other things. “Diversity” is only about skin color and genitalia.

    “(one should realize that the current state of PC would revile this piece as only including a binary representation of gender)”

    I’m old enough to remember when “sex” referred to people and “gender” referred to words.

    Anyway, your point is important in that we don’t know if Tiffany Cunningham identifies as a black woman. What if she identifies as a white male?

    @ Model 101 “I applaud this selection!”

    I cautiously applaud this selection. However, the CAFC has been too much a vast disappointment for me to believe a good thing is happening.

    “I wonder, though, what race and gender have to do with any judicial appointment.”

    I asked this question a few weeks ago. Was called “racist,” “white supremacist,” etc. by certain people who also attacked my home state as being inbred and who believe that being a KKK founder of an organization that systematically lynched black people was okay so long as said KKK organizer had a “(D)” behind his name and “evolved.”

  11. Bart July 12, 2021 5:53 pm

    Always hire the best person for the job. Skin color should have nothing to do with it.

  12. Richard A. Schafer July 12, 2021 6:28 pm

    I notice that the committee vote was 16-6 in favor of confirming her. Who were the 6 no votes and did they explain their objections to her nomination?

  13. RTFMPEP July 12, 2021 8:10 pm

    Country roads, take B home…..

  14. Curious July 12, 2021 8:40 pm

    PTO-indentured — I see you are using past wrongs to justify the quota system you want to put in place. You are advocating for the same system you decry — you want to make race and gender qualifying (or disqualifying) factors for these positions. This time, however, it is CHWM (cis-het white males) that get the short end of the stick. Is it not?

    It is only natural for people in power to use that power to their own advantage. On the other hand, it takes a considerable amount of restraint not to “enrich one’s coffers” when given the opportunity to do so. I also understand the lure to right past wrongs, but what message are you sending when you are de facto exclusive in your attempt to be inclusive? Is the message that the ends justify the means?

    Again, being accused of being woke very recently, I appreciate the difficulties that this complex issue raises. In order to prove that someone of X color or Y gender to do a job, you need to see people of X color or Y gender doing the job. However, there is a fine line between providing evidence that anyone go do a job (regardless of race/color/religion/etc) using one’s power to settle old scores.

    As I believe I wrote on this blog within the last year, I can see some justification for a TEMPORARY quota system for reasons you touched upon (writings for which I got criticized for by some of the ‘less woke’ individuals here). However, at this time, I believe that the need for such systems has past. There have been people of color in the highest offices of this land. Woman have also had the same opportunities. Are things perfect today? No. However, a small group of people will rarely match the demographics of society as a whole — and there should be no requirement that it does.

    If I see judges, or panels of judges that are dominated by men, or even ‘white men’, or any of these making up members of my own family, repeatedly, that can set an expectation of what’s possible / foreseeable / attainable for me.
    I suspect (strongly so) that Ms. Cunningham was not encumbered by these expectations. Also, as I stated above, I don’t believe that these are legitimate concerns these days. Just look at the diversity of both the Federal Circuit and Supreme Court.

    How diverse, might we guess, was the ‘brain trust’ who for this century-to-date, devised and still perpetuates a lock-grip hold on a lamentably unfair double-standard patent system (who brought and sustained us the likes of SAWS and AIA)? Want more of that sameness?
    Did you forget Michelle Lee? She is neck and neck with Dudas with the worst Patent Commissioner ever — and it has nothing to do with her gender or the color of her skin.

    If given more of a chance, could they not also ’take a stand’ (like that of a female Supreme Court justice) to support issues that they might have a more acute awareness of?
    What would that be in terms of intellectual property? Intellectual property, as best as I can tell, is both race and gender neutral.

  15. AAA JJ July 12, 2021 9:59 pm

    Racists can’t understand it (because they’re racists), but representation matters.

  16. Max Drei July 13, 2021 2:28 am

    Thank you, B, for filling me in on the science and engineering backgrounds of various judges at the CAFC. But I had more in mind the adjudication of disputes on the validity of claims at first instance. The court of appeal is rarely reached and when it is involved it reverses the first instance only when it has to.

    At first instance, at District Court level, it looks to me, as a patent attorney, like a case of the blind leading the blind. I think that is unfortunate for the health and well-being of the patent system in the USA. Stacking the Federal Circuit with STEM majors is all well and good but doesn’t address the fundamental deficiency, at first instance level, the level where the facts are “found”.

  17. Anon July 13, 2021 7:50 am

    Racists can’t understand it (because they’re racists), but representation matters.

    You cannot fight evil with the same evil.

    Your statement is nothing but racism itself, and belies the fact that you cannot even see your own racism.

  18. PTO-indentured July 13, 2021 9:21 am

    very curious @13

    PTO-indentured — I see you are using past wrongs to justify the quota system you want to put in place. You are advocating for the same system you decry — you want to make race and gender qualifying (or disqualifying) factors for these positions. This time, however, it is CHWM (cis-het white males) that get the short end of the stick.

    Kindly indicate where I have indicated “a quota system that I want to put into place”. Please point out where I say “white males will get the short end of the stick”.

  19. Curious July 13, 2021 10:30 am

    Kindly indicate where I have indicated “a quota system that I want to put into place”. Please point out where I say “white males will get the short end of the stick”.
    A great number of racists and misogynists don’t openly espouse that they are. However, they oftentimes use code words. The code words here is “diversity” which is why I pointed out how many times that word (or a variation thereof) was used in the article.

    You wrote “I thought I’d share some thoughts, that adds to and hopefully uplifts our consideration of diversity.” Uplifts our consideration of diversity? That is a rather flowery of saying something. Now what is that something you are trying to say?

    As was somewhat apparent from your writing (if I could make a suggestion — try not to be so obtuse — rather make it clear what you stand for and why) you are for increasing “diversity” (or as you put it “opposite of sameness”).

    And when you mean “diversity,” it doesn’t mean more short people or more tall people, or more people from mid-western backgrounds, or more people who like Thai food. Rather, you mean less white men. How do I know that? You wrote that the courts being “dominated” by “white men” placed an “expectation” of what is “attainable for [you]” — the obvious implication that it was a negative expectation.

    With that it mind, it isn’t too hard to add 2 + 2 to get 4. More “diversity” is your goal, and more diversity means less white men. You don’t have to explicitly “point [it] out” for it to be true.

    As for the “quota,” that is just the old (politically incorrect) term that was replaced with the new (politicly correct) “diversity.” Once you are doing an accounting as to how diverse any particular court is and reacting based upon that accounting, you are employing a quota system. The fact you may not call it one doesn’t mean that’s not what you are doing.

    Personally, I have no problem with diversity — that is come by naturally. Moreover, I do not believe that discrimination based upon race/religion/gender/etc. is proper. However, hiring solely for the purposes of diversity is discrimination. Moreover, in this instance, I do not see how “diversity” helps the court in its job. From my experience, intellectual property law is quite blind to both color and gender. As far as I know, there are no ‘woman’s issues’ or ‘racial issues’ in intellectual property. If you think there are, then please share them with us.

    Personally, if I go to the Federal Circuit (once Ms. Cunningham gets affirmed), I would much rather have 5 of the 6 woman on my panel than any of the 6 men (I could do without Prost). However, my preference has nothing to do with their gender.

  20. Night Writer July 13, 2021 10:47 am

    I think that Cunningham was the best qualified candidate that was a woman and black.

    We still from what I’ve seen know nothing about her 101 positions and whether she is an anti-patent judicial activist. My guess is that she is or that she pledged to Biden in exchange for her appointment “to keep those patents under control.”

    So likely another POS judge coming our way.

  21. B July 13, 2021 12:18 pm

    @ Richard Schafer “I notice that the committee vote was 16-6 in favor of confirming her. Who were the 6 no votes and did they explain their objections to her nomination?”

    I was wondering that myself. I can’t even find the full senate hearing video. Personally, I like everything about Cunningham’s c.v. (except she clerked for Dyk), but it would be interesting to see what, if anything, might be objectionable.

    @ Max Drei “The court of appeal is rarely reached and when it is involved it reverses the first instance only when it has to.”

    Ah, I get where you’re going and do so apologize for not seeing the bigger picture. I’d say that the problem gets worse when you’re trying to explain modern telecom concepts to a jury with an average education of an 11th grader, but it really doesn’t. I’ll trust a jury on a technical issue b/f almost any judge.

    @ AAA JJ “Racists can’t understand it (because they’re racists), but representation matters.”

    You are the one the most openly racist person on this forum. I know you can’t see it (because you’re a racist), but the right for a person to have a competent judge outweighs petty desires for diversity.

    @ Anon “Your statement is nothing but racism itself, and belies the fact that you cannot even see your own racism.”

    AAA JJ has made the most outlandish racist statement on this forum and has never apologized all the time screaming about the racism of others. His powers of projection are unsurpassed on this forum.

  22. AAA JJ July 13, 2021 12:27 pm

    “I’m old enough to remember when ‘sex’ referred to people and ‘gender’ referred to words.”

    How traumatizing for you that not everybody wants to live in the binary world that you’re so comfortable in. How do you cope?

  23. B July 13, 2021 1:23 pm

    @ Night Writer “We still from what I’ve seen know nothing about her 101 positions and whether she is an anti-patent judicial activist. My guess is that she is or that she pledged to Biden in exchange for her appointment ‘to keep those patents under control.'”

    This is my fear as well. Alice-Mayo provides the perfect mechanism whereby less than bright and/or honest judges can exercise a capricious patent veto.

    @ curious “Personally, if I go to the Federal Circuit (once Ms. Cunningham gets affirmed), I would much rather have 5 of the 6 woman on my panel than any of the 6 men”

    Your CAFC dream panel includes Judge Plager

  24. AAA JJ July 13, 2021 1:37 pm

    “… but it would be interesting to see what, if anything, might be objectionable.”

    Gee, what could those 6 possibly object to? That’s a most puzzling question. Hmm.

    “… but the right for a person to have a competent judge outweighs petty desires for diversity.”

    So the desire of people who are the descendants of slaves and the inheritors of 100 years of American apartheid to see people from their group in positions of prominence, and power, are “petty”?

    But I’m the racist.

    Right.

    No matter how much you push the nonsense that we can have merit or diversity, but not both, is gonna give truth to that lie.

    Here’s some relevant commentary for the “B-b-but I quote MLK!!!!” crowd:

    https://www.huffpost.com/entry/kevin-mccarthy-critical-race-theory-mlk_n_60ed6abfe4b0b2a04a1d037e

  25. Night Writer July 13, 2021 1:38 pm

    @21 >>AAA JJ

    AAA JJ has joined the “woke.” ‘Nuff said.

  26. Anon July 13, 2021 2:06 pm

    How traumatizing for you that not everybody wants to live in the binary world that you’re so comfortable in. How do you cope?

    You do not even recognize the irony, do you AAA JJ?

    What “anyone want” does not and cannot override reality.

    I fully “get” that non-binary actually does occur in nature – but I also fully “get” that such is a natural aberration.

    For me, I have zero problems with anyone being non-binary and treat such people (yes, I do know such people) with the respect and dignity of being human.

    That does NOT mean that I treat – or want to treat aberration as normal.

    That does NOT mean that I embrace the wayward philosophical underpinnings of Neo-Liberalism, identity politics and intersectionality – nor need I to treat people as people.

    And it certainly does not mean that your own “Activist Privilege” means that any embrace that you may have of “ISMs” of any sort somehow have a “moral” high ground.

    Your assertion that ‘comfort’ must be a driver is a projected fallacy.

    AAA JJ has made the most outlandish racist statement on this forum and has never apologized all the time screaming about the racism of others.

    Apparently not limited to the ISM of racism.

  27. B July 13, 2021 2:11 pm

    @ AAA JJ “But I’m the racist.”

    Yes, that has been firmly established by your own posts.

    “No matter how much you push the nonsense that we can have merit or diversity, but not both, is gonna give truth to that lie.”

    See, I never said that. In fact, no one on this forum said that. This is a perverse misstatement that people, such as you, push because you’re incapable of an honest discussion on the merits.

    Last, I could care less what AOC says about anything. She’s the last person anyone should use in an appeal to authority argument.

  28. AAA JJ July 13, 2021 4:17 pm

    “See, I never said that.”

    Yeah, you did.

    “I could care less what AOC says about anything.”

    And your thoughts on Bernice King schooling McCarthy, and the other racists, on what her father actually advocated for, are…?

    Lulz

  29. Anon July 13, 2021 4:58 pm

    As AAA JJ has conveniently stated (in a past discussion on authority figures) that he does not accept everything that any authority figure states – while also NOT telling anyone anything about which aspects of the very “authorities” he provides that he DOES believe in — I have to wonder exactly what aspects of Critical Race Theory are the ones that AAA JJ does believe in.

  30. Anon July 13, 2021 5:42 pm

    Night Writer,

    It is less that AAA JJ has “joined the woke,” and more that he has always been among the woke.

    I have long pointed out that he seems to lose all ability to reason why he veers away from patent law (and also how much he becomes like Malcolm Mooney when he does so).

  31. Anon July 13, 2021 6:12 pm

    AAA JJ,

    I see that you have “conveniently” forgotten that others have already pushed back on your “what else MLK has said” on those other things being more “anti-capitalism” than having to do with being color blind.

    The bottom line is inescapable: the so-called “anti-racist” position is itself racist.

    A better path for you: be a non-racist.

    Yes, that may not suit the anti-capitalist pangs that you may have, but it also won’t attempt to “fight evil” by embracing that very same evil.

  32. B July 13, 2021 7:40 pm

    @ AAA JJ “Yeah, you did.”

    Please find where I said that.

    “And your thoughts on Bernice King schooling McCarthy, . . .”

    McCarthy quoted MLK exactly, but for the toadies on the left pushing the idea that Bernice King “schooled” McCarthy, Bernice King failed to cite a single thing MLK said that advanced CRT. You should really start to read the nonsense you post b/f posting it. Further, you should quote sources that actually know the definition of CRT.

    BTW, CRT first rose as a discredited branch of critical theory long after a Democrat assassinated MLK.

    @ Anon “I have to wonder exactly what aspects of Critical Race Theory are the ones that AAA JJ does believe in.”

    CRT is nothing more than an activist movement pushed by sub-par intellects and street thugs trying to bring down social institutions w/o pointing to actual racist acts or policies.

    What everyone should ask themselves when pondering CRT as promoted by modern liberals: Do laws and government-enforced rules that expressly favor one race over another actually combat racism?

  33. AAA JJ July 13, 2021 10:44 pm

    CRT is an activist movement? Is that what you read in Newsmaxx?

    Lulz

  34. B July 13, 2021 11:04 pm

    @ AAA JJ “CRT is an activist movement? Is that what you read in Newsmaxx?”

    The critical race theory (CRT) movement is a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power. The movement considers many of the same issues that conventional civil rights and ethnic studies discourses take up but places them in a broader perspective that includes economics, history, setting, group and self-interest, and emotions and the unconscious. Unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” – Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (3rd Edition)

    Richard Delgado along with Derrick Bell founded CRT. Jean Stefancic is Delgado’s wife.

    Arrogance and ignorance is a really bad (but ever-present) look for you, AAA JJ

    https://guides.lib.unc.edu/criticalracetheory/home

  35. Greg DeLassus July 14, 2021 12:27 am

    You are advocating for the same system you decry — you want to make race and gender qualifying (or disqualifying) factors for these positions.

    I do not want to put words into anyone else’s mouth, so please note that I do not mean to answer on behalf of PTO-Indentured, who can surely answer for himself or herself. I think, however, that when assessing whether or not race or gender should be a job qualification, one needs to consider the nature of the job.

    Here we are talking about an opening on the appellate bench. This is not like a job in the private sector.

    The purpose of a salesperson is to sell. If a given white woman can sell more dollars’ worth of the product in question than a given black woman, then the white woman is objectively the more qualified salesperson.

    The purpose of a prep-&-pros attorney is to counsel clients how best to protect their inventions in a manner that can actually work in the real-world marketplace and in real-world courts. If a given black man gives counsel that achieves better real-world outcomes for his clients than a given white man, then the black man is objectively the more qualified prep-&-pros attorney.

    What is the purpose, however, of a judge? The judge’s job is not merely impartially to apply the law, but to do so in a manner that appears impartial (and ethical) to observers.

    Appearances matter, in other words, in this particular role. If the appellate bench is composed entirely of white men (even if they are all scrupulously ethical, well qualified white men), one creates the appearance that the law is some sort of colonialist project imposed on the many by a select few.

    Therefore, it really is a qualification for the appellate bench that its composition more or less reflect the diversity of the population over which it sits in judgment. To the extent that the U.S. appellate bench lacks black women relative to their presence in the U.S. population, it is disqualifying for an otherwise plausible nominee to be a white man. This is simply an objective conclusion that follows ineluctably from the nature and purpose of the appellate judge’s role.

  36. Night Writer July 14, 2021 3:53 am

    Greg’s argument is one where people are divided into categories and then outcomes are guaranteed according to percentages of the categories–but only if white men are a greater category. Note that Greg is not advocating for white men to be chosen over black men in the NBA, NFL, or any other sport that is dominated by black men.

    And then which category should a person be put into? What should the categories be? Who is to decide the percentages?

    It is a neo-Marxist plan. There are many, many intellectuals that decry the “equity” plan of categories as unworkable and sowing the seeds of hate.

    >>Therefore, it really is a qualification for the appellate bench that its composition more or less reflect the diversity of the population over which it sits in judgment. To the extent that the U.S. appellate bench lacks black women relative to their presence in the U.S. population, it is disqualifying for an otherwise plausible nominee to be a white man. This is simply an objective conclusion that follows ineluctably from the nature and purpose of the appellate judge’s role.

  37. Night Writer July 14, 2021 4:00 am

    The biggest problem too is this game where white men are compared to Bill Gates or Jeff Bezos as if we are all these rich people. Or that whatever we have we got through bad means.

    The fact is that Cunningham has been privileged compared to me. Whether she needed it or not she was favored in her admission to MIT and Harvard. Whether she needed it or not she was HEAVILY favored in her selection at a law firm and selection as partner. She was now favored to be selected as a CAFC. Her entire life has been one of society giving her privilege.

    Notice too that society doesn’t tax the very rich and use the money to offset past inequities but rather punishes the average person–takes from them–to give to another group of people.

    You have to ask whether you even want people like Cunningham created in our society. One of my law professors told us in class that he knew he was less qualified than many white men and women for the position but that he didn’t care about them. That he should get more than whites because of past inequities. Sounds like a monster has been created.

    Not the Golden Rule. Not compassion. Not the type of person that you want in a just society.

  38. Night Writer July 14, 2021 4:11 am

    One final note on this too is the following. The percentages are being calculated based on percentage of population. So even if only 1 percent of patent attorneys are black people, corporations are demanding much higher percentages. This has created a situation where black people that are in the upper middle class are being given massive privilege over other people. We know that at Harvard the average SAT score is 300 lower for a black person than an Asian person. And now with corporations demanding percentages of black people at corporations that do business with them you have this situation where black people are getting huge benefits and it isn’t helping the vast majority of black people.

    Hillary Clinton actually said back in the 1990’s something profound. She said if you want to fix all these problems, then the key is to help children and families. That all the inequities are baked in by age 12.

    I think this is a lot like letting China into the WTO, passing NAFTA, dropping trade barriers for everyone but your constituents, and so forth. The game is you give to your group or make an effort to correct problems at the expense of the white middle class. But actually probably those that paid the most because of Bill Clinton were the black middle class.

    Anyway, doesn’t matter what I think.

  39. Anon July 14, 2021 7:46 am

    Greg’s comment is racist – pure and simple.

    He has accepted without question that “appearance” MUST equal racism IF anyone might think so, and then turns around and tries to dress that up as “objective.”

    Such is nothing more than evil.

  40. Anon July 14, 2021 9:10 am

    The duplicity of AAA JJ on this subject is glaring.

    At the same time that he insists on being “his own thinker” (nothing wrong with that part), but refuses to elaborate on which parts of the “experts” that he present that he does believe in, he would eagerly turn around and suggest that it is somehow improper to not take ALL of the views of MLK as somehow necessarily being locked together.

    I am quite certain that he is blissfully unaware that his Activist Privilege of “for thee, but not for me” is showing.

  41. B July 14, 2021 10:38 am

    @ Greg L “Therefore, it really is a qualification for the appellate bench that its composition more or less reflect the diversity of the population over which it sits in judgment.”

    This is probably the best argument I’ve seen in favor of diversity.

    So if I get a CAFC panel consisting of three women I can scream that the panel doesn’t have the appearance of objectivity.

    Or is it only straight white men who lack the appearance of objectivity?

    I’m confused

  42. B July 14, 2021 12:11 pm

    @ Anon “The duplicity of AAA JJ on this subject is glaring.”

    I’m pretty sure AAA JJ doesn’t believe much of what he says. It’s all simplistic tribal rhetoric, full of sound and fury, signifying nothing.

  43. Anon July 14, 2021 2:53 pm

    B,

    The sad thing is, I think that AAA JJ really does believe in the nonsense that he spouts.

    He may not understand WHY he believes it (and refuses to actually chase down the underpinning philosophies of his “Activist Privilege” roots), but he gives every impression that he DOES believe it (even if it is so in a mindless, slavish, and purely emotional manner).

  44. B July 14, 2021 5:19 pm

    @ Anon

    Take a look at my post@32. I made several challenges including: (1) stating Bernice King failed to cite a single thing MLK said that advanced CRT (100% true), (2) stating that CRT first rose as a discredited branch of critical theory long after a Democrat assassinated MLK (100% true), and asked “Do laws and government-enforced rules that expressly favor one race over another actually combat racism?”

    Rather than address such substance, AAA JJ chose to attack my relatively insignificant assertion that “CRT is nothing more than an activist movement.” Being clueless, his knee-jerk reaction was to “LULZ” where after I quoted the progenitors of CRT.

    See, AAA JJ doesn’t have to be right – something that you constantly allude to by his evasions.

    AAA JJ’s real interest is in accusing other people of being wrong. It’s a form of narcissistic personality disorder where AAA JJ constantly reacts with rage or contempt while trying to belittle other people to make himself appear superior.

    Now here’s the really, really, really funny part, Anon. The quote I used above from Delgado — I first heard from Ben Shapiro. Yes, Ben Shapiro just handed AAA JJ his head on a basic factual issue.

    Can I get a “lulz?”

  45. Greg DeLassus July 14, 2021 6:31 pm

    Greg’s argument is one where people are divided into categories and then outcomes are guaranteed according to percentages of the categories–but only if white men are a greater category.

    You quite misunderstand me. It has—of course—never happened in the history of the U.S. that white men have been under-represented on the federal bench relative to the general population. If, however, such a state of affairs were to arrive, my argument would definitely be that “white” and “male” would then (in that wildly imaginary situation) become qualifications.

    Note that Greg is not advocating for white men to be chosen over black men in the NBA, NFL, or any other sport that is dominated by black men.

    Correct, I am not advocating that. My point—a fairly indisputable point, I would think—is that one must think carefully about the nature of a given job and its social purpose before one can logically conclude whether race/gender/etc. is or is not an objectively reasonable qualification to consider when filling a job opening.

    To give a fairly trivial example, gender is an objectively reasonable consideration when hiring models to display women’s clothing. >90% of models for women’s clothing are women, because the purpose of a model for women’s clothing is to show the public how the clothes look on a woman. No one is confused about why gender is a job qualification for that particular job.

    By contrast, the objective purpose of a (e.g.) linebacker in NFL is to help the team win games. If a given black linebacker helps the team to win more games than does a given white linebacker, then the black linebacker is objectively a better linebacker than the white linebacker. One can make this determination accurately and objectively without any consideration of the demographic particulars of the candidate linebackers. You are quite correct, therefore, that the argument that I am advancing does not require that we start taking demographic categories into account when hiring NFL or NBA players.

    And then which category should a person be put into?

    Does it matter for present purposes?

    What should the categories be?

    I expect that this question will sort itself out without much work from those of us in this discussion.

    Who is to decide the percentages?

    Are you concerned that the answer might vary meaningfully according to who counts? I have seen no evidence of such discrepancies to cause me much concern.

    It is a neo-Marxist plan.

    If you say, whatever that means.

  46. Greg DeLassus July 14, 2021 6:56 pm

    Greg…[, t]his is probably the best argument I’ve seen in favor of diversity.

    I aim for excellence.

    So if I get a CAFC panel consisting of three women I can scream that the panel doesn’t have the appearance of objectivity. Or is it only straight white men who lack the appearance of objectivity?

    A few thoughts (some as flippant as your quip, some more serious):

    1) If I got a panel of all women, I would thank my lucky stars. Pauline Newman and Kimberly Moore are the two best jurists on that court, and Kathleen O’Malley and Kara Stoll are close behind. It is not mathematically possible to assemble an all woman panel on that court that will not include at least two of the court’s best jurists. I would feel much better knowing that the majority on my panel was guaranteed to feel bound by the law, and not (*cough* Mayer & Dyk *cough*) make up new rules of law out of whole cloth and dyspeptic bile.

    2) You can scream if you like, although I doubt that it will get you an outcome that you regard as felicitous.

    3) Ultimately, all law depends on the acceptance of the population that lives under the law. So long as the population of scofflaw malcontents in a community is sufficiently small, the rest of the community can compel the would-be scofflaws to respect the law. The individual scofflaws can throw “sand” in the legal system’s “gears,” however, so the larger the population of would-be scofflaws, the more expensive and unwieldy becomes the structure necessary to maintain such compulsion.

    Ideally, then, one should want as much of the society as possible to feel “bought in” to the legal system. The more it looks and feels like something imposed by one group on the other, the harder it will be to make it work. The more it looks and feels to every individual like it is “our“ (not “their”) legal system, the better it will function and the easier it will be to make it work.

    When cis-hetero white guys like you & I grumble about the steps we have to take to make the rest of society feel as bought-in to the legal system as we already are, we are doing ourselves no favors. The argument that I am advancing is intended to benefit white guys like ourselves as much as any other group. We are all in society together, and we will do well to remember as much and to act on that consciousness.

  47. PTO-Indentured July 14, 2021 9:13 pm

    Some sense of proportionality can also be helpful in assessing how we’re doing in moving toward a ‘composition more or less reflecting the diversity of the population over which the FC sits in judgment’. Particularly if empathy and a watching out for discrimination also contribute to a making of more equitable progress.

    In the above article, we have a ‘proportionality’ where just ONE well-qualified African American woman in the entire history of the FC has, and deservedly so, entered the ranks of FC judges.

    If we ask ourselves, how could it have been, before Judge Cunningham’s appointment, throughout the full history of the FC, that no other deservedly qualified African-American was appointed? Common sense, and some empathy, would lead us to likely conclude something was amiss, in FC judge appointments over a 130 year period of time. I don’t have a crystal ball, nor all the facts, but this is of the types of ‘omissions’ that have characterized Jim Crow practices.

    I mentioned above, by way of example, how Harvard (and in due time society), were better off following a first hint of a new ‘diversity’ factor, allowing women to attend the formerly all-male college. I was disappointed to read yesterday (mid-2021) about Cornell West’s feeling compelled to resign from Harvard and submitting his resignation — citing, among other issues, “the university’s push for diversity as “superficial” and a version of Jim Crow era oppression.”

    What might be among approaches available to us, that can proactively help us more representatively engage and make appointments from all of our fellow deservedly qualifying citizens — and avoid amounting to “superficial” diversity? There remains much to be done to effectively address this challenging issue.

    As perhaps, some food for thought, I will end with an attempt at an ‘E Pluribus Unum’ accommodating equation: A) If, each ‘1’ out of whatever kind of deservedly qualifying judge new to the FC, represents 0.5% of a given number of all FC judges, then, B) a reduction of, or new vacancy from amidst, the makeup of FC judges — of 0.05% — is provided to accommodate each/new such judge; and, C) if this taking on of deservedly qualifying judges is further needed so as to adjust reasonably toward a ‘composition more or less reflecting the diversity of the population’ then, D) this always moving toward a more representative composition does not necessitate quotas, nor must it preclude each of such appointments being done in a deliberate, thorough and thoughtful — and non-discriminatory — manner.

  48. B July 14, 2021 9:23 pm

    @ Greg DeL “A few thoughts (some as flippant as your quip, some more serious):”

    It’s not flippant in the slightest. Your argument is that judges must be diverse to appear objective. Ergo, if I don’t have a panel that is sufficiently diverse, there can be no appearance of objectivity.

    “Pauline Newman and Kimberly Moore are the two best jurists on that court, and Kathleen O’Malley and Kara Stoll are close behind”

    Name one good opinion of Kara Stoll. Seriously. As to O’Malley, she signed on to one of the most outrageously dishonest opinions the CAFC ever spewed in the last decade. https://www.bitlaw.com/source/cases/patent/Chamberlain-Group.html

    BTW, I’ve been in front of Stoll and Prost, and to tell the truth I was less than impressed. Prost couldn’t follow simple technical issues and Stoll was totally ignorant of basic SCOTUS precedent.

    “It is not mathematically possible to assemble an all woman panel on that court that will not include at least two of the court’s best jurists.”

    You have no idea of what you say, but you’re missing the point. Based on your logic there can be no appearance of objectivity if there were an all female panel.

    “The argument that I am advancing is intended to benefit white guys like ourselves . . .”

    Respectfully, your argument is nonsense. I’d rather have a panel that is objective in fact than have a panel that is presumably objective because . . . diversity.

  49. Curious July 14, 2021 9:38 pm

    My point—a fairly indisputable point, I would think—is that one must think carefully about the nature of a given job and its social purpose before one can logically conclude whether race/gender/etc. is or is not an objectively reasonable qualification to consider when filling a job opening.
    I understand the “social purpose” of having a diverse bench. However, I would argue that the “social purpose” is not the prime purpose of the bench. To that end, I would argue that the primary concern would be to have a candidate that is qualified to serve the prime purpose. In this instance, Ms. Cunningham appears to be as well-qualified as (if not more qualified than) anybody that has been recently nominated to the Federal Circuit. That she happens to be a black woman may be beneficial to your stated “social purpose.” However, these characteristics should NOT be the prime drivers for her nomination.

    90% of models for women’s clothing are women, because the purpose of a model for women’s clothing is to show the public how the clothes look on a woman
    Just a minor quibble — women models generally look like less than 5% of the population (of women) — i.e., they are not reflective of the population of the buyers.

    When cis-hetero white guys like you & I grumble about the steps we have to take to make the rest of society feel as bought-in to the legal system as we already are, we are doing ourselves no favors.
    Do you think that black men have bought into the legal system because of Clarence Thomas? People buy into the legal system because of the rulings being made — not because of the gender/color of the people making the rulings.

    The argument that I am advancing is intended to benefit white guys like ourselves as much as any other group. We are all in society together, and we will do well to remember as much and to act on that consciousness.
    People also recognize tokenism when they see it. I don’t believe that this applies to the Ms. Cunningham. However, the problem of tokenism rears it head when “diversity” is elevated over more important factors. When people think that a hiring decision was made by tokenism, that undermines the very thing you want to improve (i.e., the credibility of the court).

    Perhaps it would be easier to discuss if some examples were presented. Let’s consider that a group of 20 nominations was announced for the Federal bench.

    1) Of the 20, 18 were male and 19 were white. In this instance, I would suspect that a great many would think that there was discrimination being practiced.
    2) Of the 20, 17 were female and 14 were persons of color. In this instance, I would suspect that many would argue that tokenism was being practiced
    3) Of the 20, 11 were female, and 6 were persons of color. In this instance, it would be harder to argue that either discrimination or tokenism was being practiced.

    Importantly, anybody nominated really needs to be qualified for the position. For example, the last administration nominated many judges who were unqualified for their positions, but it was readily apparent that they were nominated because of their political philosophy. Every President has a right to nominated judges that matches the President’s philosophy — however, they still need to be qualified.

    Judicial nominations are always going to be highly scrutinized. The important part, IMHO, is not to let the nominee’s secondary qualifications (e.g., whether it is for diversity or politics) supersede the primary qualifications.

  50. Greg DeLassus July 14, 2021 9:49 pm

    Your argument is that judges must be diverse to appear objective. Ergo, if I don’t have a panel that is sufficiently diverse, there can be no appearance of objectivity.

    If you care to parse that out in formal logic, you will see that one cannot actually derive your conclusion from my premise. In other words, the position that you are ascribing to me is not actually a necessary implication of my contentions.

    You do not believe the bit that follows your “ergo,” nor do I. You are arguing with a straw man, and to what useful or profitable end? Like I said, you are just being flippant, and so you receive some flippant answers. An even exchange, that…

  51. Greg DeLassus July 14, 2021 9:55 pm

    I’ve been in front of Stoll and Prost, and to tell the truth I was less than impressed. Prost couldn’t follow simple technical issues and Stoll was totally ignorant of basic SCOTUS precedent.

    Naturally, while my comments about four women on the CAFC constitute an entirely sincere reflection of my esteem for those four, that part of my response was among the flippant parts. There is no need to respond to my remarks about Judge Stoll, because those remarks are simply irrelevant to the real discussion.

    To the extent, however, that you really mean for your critiques of Judges Prost and Stoll to carry any real force, you will actually need to cite the cases that you have in mind. No fair-minded person can simply take your word for it that it was the judge (and not yourself) who was misunderstanding precedent. One would need to hear the exchange and read the opinions for oneself to know who really came up short in the exchange.

  52. Night Writer July 15, 2021 4:34 am

    @46 Greg “When cis-hetero white guys like you & I grumble about the steps we have to take to make the rest of society feel as bought-in to the legal system as we already are, we are doing ourselves no favors. ”

    It is funny the way Greg’s brain is organized as it is typical of liberal white straight men. Basically their argument comes down to I found a way to make it in the world and if you didn’t then it is your fault and I am fine with giving up all sorts of great deals to other people that hurt you but see I made it.

    They always have this little selfishness in them about their life and job and they are very mean and protective about what they’ve got. But they freely hurt other white males as if you were just as smart as me and took care of yourself, then you’d have a good life like me.

    It is a narcissistic and petty. It is like the guy that got a seat on the Titanic by luck or by pushing in front of a group of children and then condemning everyone else for not being as fast or competitive as he was. Or getting his seat in the lifeboat and then yelling at all the other white men to step aside for the women and children.

    I see a lot of people like Greg where I live as I live in one of the most liberal areas in the USA. Their views basically maximum reward for themselves.

  53. Greg DeLassus July 15, 2021 10:37 am

    Greg’s… argument comes down to [“]I found a way to make it in the world and if you didn’t then it is your fault and I am fine with giving up all sorts of great deals to other people that hurt you but see I made it.[”]

    You are telling on yourself with all this projection.

  54. B July 15, 2021 1:00 pm

    @ Greg DeL “Naturally, while my comments about four women on the CAFC constitute an entirely sincere reflection of my esteem for those four, that part of my response was among the flippant parts.”

    Said judges had my esteem by virtue of their office. Prost, O’Malley, and Stoll lost my esteem by virtue of their incompetence and/or dishonesty. This is no different than Hughes, Taranto, Dyk, Reyna, and Chen.

    Oh, by the way, I’m unaware of a single Redneck (or as we call ourselves “Agro-Americans”) on the CAFC even though we constitute a minimum 35% of America. Obviously, the CAFC will never have an appearance of objectivity until Biden appoints 3-4 Rednecks to the Federal Circuit bench.

    “To the extent, however, that you really mean for your critiques of Judges Prost and Stoll to carry any real force, you will actually need to cite the cases that you have in mind.”

    Any Alice/Mayo decision – pick one

    @ Night Writer “I see a lot of people like Greg where I live as I live in one of the most liberal areas in the USA. Their views basically maximum reward for themselves.”

    I suspect that no one around you knows how to field-dress a deer or sight-in a rifle scope.

  55. Anon July 15, 2021 2:19 pm

    Greg is “telling on himself” with his ‘I am too polite to be direct, so let me engage in passive/aggressive behavior by simply dismissing any point brought against my views.”

    I am happy for him that he is so willing to make an arse of himself and his real name.

  56. Night Writer July 15, 2021 6:06 pm

    @55 Anon

    Greg is basically a good guy. Lots of stuff going on there, but still basically a good guy. Let’s not go too far.

  57. Anon July 15, 2021 6:12 pm

    Night Writer,

    You see the sheepskin – I see the wolf underneath.

    It is evil to employ evil under the guise of some greater good to combat the very same evil.

    Anti-racism IS racism.

    I do not suffer the false pangs of “let’s be polite” in the implementation of evil.

    “Activist Privilege” is a very real — and insidious — thing.

  58. Greg DeLassus July 15, 2021 6:38 pm

    People buy into the legal system because of the rulings being made — not because of the gender/color of the people making the rulings.

    Hm, it seems to me that it is a little of both, but I cannot prove this, so I will not press the point.

    People also recognize tokenism when they see it… When people think that a hiring decision was made by tokenism, that undermines the very thing you want to improve (i.e., the credibility of the court).

    This is a very good point. Two hundred years of racism and sexism have left us much worse off than we could be, but there is a real limit to how quickly we can move to correct course. If one tries to appoint too many women to the bench in too short a span of time (no matter how well qualified) this will perversely alienate some of the folks who are presently most “bought in” to the justice system. The grumbling about “affirmative action hires” will degrade “buy in” among some more than it enhances “buy in” among others.

    The goal is to get more “buy in.” Measure that simply trade places between the alienated and the “bought in” are not helpful. Thanks for pointing that out.

  59. B July 15, 2021 10:35 pm

    @ Greg DeL “If one tries to appoint too many women to the bench in too short a span of time (no matter how well qualified) this will perversely alienate some of the folks who are presently most “bought in” to the justice system.”

    Here’s where I call your b.s. what it is – total b.s. woke pandering.

    More women attend college than men now and who exactly complained? More women attend law school than men now and who exactly complained? Who complained about Pauline Newman or Kimberly Moore? Have you seen a single comment here complaining about too many “well-qualified” women who were “brought in” “in too short a span of time” or any other time span merely b/c they’re women? How about on the Hill? Heard any such comments?

    No one is complaining about women joining the bench b/c they’re women.

  60. B July 15, 2021 10:52 pm

    @ Greg DeL

    BTW, not a single Male Democrat Senator voted for (ABA-rated “well-qualified” Amy Coney Barrett? Can we call them women-hating bigots? Is that allowed? How about anti-Catholic bigots?

    Maybe the point is that some of us are concerned with merit while people like you are concerned with an appearance of diversity – but only the “correct” form of diversity.

  61. Greg DeLassus July 15, 2021 11:08 pm

    Here’s where I call your b.s. what it is -total b.s. woke pandering… Have you seen a single comment here complaining about too many “well-qualified” women who were “brought in” “in too short a span of time”…?

    Well, yes, as a matter of fact. I am surprised that you missed #49 above, where Curious complains that if—in a crop of 20 openings to be filled—17 women were appointed, this would constitute “tokenism” and would “undermine… the credibility of the court.”

    If you disagree, you can take it up with him. It is unlikely that we will ever get an empirical answer to that question, so I do not want to get bogged down debating it.

    [N]ot a single Male Democrat Senator voted for (ABA-rated “well-qualified” Amy Coney Barrett? Can we call them women-hating bigots? Is that allowed? How about anti-Catholic bigots?

    I supported Judge Coney-Barrett’s nomination. I thought that her detractors were obnoxious. If you want to vituperate them as “bigots,” you will get no argument from me. Certainly Sen. Feinstein’s rank anti-Catholicism can be fairly derided as “bigotry” (or worse) in my book.

  62. B July 16, 2021 12:38 am

    @ Greg DeL “I am surprised that you missed #49 above, where Curious complains that if—in a crop of 20 openings to be filled—17 women were appointed, this would constitute “tokenism” and would “undermine… the credibility of the court.”

    Respectfully, Curious was speaking to appearances of candidate selection having nothing to do with the relative qualifications of judicial candidates, and given Biden’s recent list of judicial candidates coupled with statements of promoting diversity PLUS certain bigots on the Senate who openly declared they would not vote for straight white men, Curious is spot on. https://19thnews.org/2021/07/biden-judicial-nominees-women/

    My point is that (I honestly believe) no one here is against women on the bench so long as they merit the office. I want Cunningham to succeed and follow in the footsteps of Moore and Newman. What I fear is that she will be a Dyk clone not b/c of her color or sex, but b/c she clerked for Dyk.

    “Certainly Sen. Feinstein’s rank anti-Catholicism can be fairly derided as “bigotry” (or worse) in my book.”

    Unfortunately, open bigotry is tolerated and even applauded on Capital Hill if it’s the “correct” bigotry.

  63. Night Writer July 16, 2021 5:53 am

    I disagree with pretty much everything about categorizing people by race and gender and then trying to even up the numbers.

    Note too that this country was founded by white protestant men and right now not a one sits on the Scotus.

  64. Anon July 16, 2021 7:01 am

    Greg dresses up in the sheepskin of laudable Ends, while “enjoying” the wolf of identity politics (as a function of Neo-Liberalism.

    Look at how he wants his camel nose of “appearance” to be some type of “objective” factor.

    It is not the villain wearing the black hat that one has to be more vigilant about.

  65. Night Writer July 16, 2021 8:00 am

    The thing that is always missing from these discussions are what is the harm?

    Some white male that worked his a** off his whole life won’t get his dream realized and become a judge on the CAFC.

    Many people will see the system as unfair as if you are a women and/or from an “underrepresented” category, then you get special favors.

    Many people will suspect that Cunningham is not qualified and was nominated unfairly.

    The alternative is to tax the richest people who presumably are the ones that benefited from all this “privilege” and then give that money to help children and families in need, which is what Hillary Clinton said, by the way.

  66. Anon July 16, 2021 8:26 am

    Night Writer,

    Place the quote:

    “From each according to his ability, to each according to his needs”

  67. Greg DeLassus July 16, 2021 9:00 am

    [T]his country was founded by white protestant men and
    right now not a one sits on the Scotus.

    Neil Gorsuch is an Episcopalian.

  68. Greg DeLassus July 16, 2021 10:22 am

    I disagree with pretty much everything about categorizing people by race and gender and then trying to even up the numbers… The alternative is to tax the richest people who presumably are the ones that benefited from all this “privilege” and then give that money to help children and families in need…

    Fair enough, of course. It seems passing strange that upthread you deride my argument as “neo-Marxist,” but now you propose actual Marxism as a better alternative.

  69. B July 16, 2021 12:40 pm

    @ Greg DeL “Neil Gorsuch is an Episcopalian.”

    As the Baptist say in or anywhere south of Nashville – “Episcopalians are Catholics who can’t speak Latin.”

    Me, it’s my understanding that half the Founders were agnostic.

    All that said, I understand your point of view but I respectfully disagree as diversity “issues” cure themselves over time so long as overt racism/sexism is criticized for what it is.

    Preferring one person over another b/c of race is racism.

    Preferring one person over another b/c of sex is sexism.

    Outside personal relationships (everyone has preferences in who they date/marry) many, if not most, of us were taught that racism and sexism are bad. Now, the Democrat party / left wants to resurrect racism and sexism in the name of “diversity” while claiming that those who oppose race/sex-based preferences are bigots, and oh, gosh, we need to be cattle-prodded into re-education camps and forced to watch “The View” until we agree with them.

    That said, I do want to thank you for not using caustic rhetoric when making your points. I also want to apologize to you for lumping you in with Senator Feinstein.

  70. Night Writer July 16, 2021 2:26 pm

    @67 OK. Neil Gorsuch. I forgot about him. But, “Justice Neil Gorsuch is the first member of a mainline Protestant denomination to sit on the Supreme Court since the retirement of John Paul Stevens in 2010.”

    So white protestant men are way underrepresented. I would expect the next two or three Scotus nominees to be white protestant men or women.

    @68 Greg ????

    Marxism is insuring equal outcomes. Taxing rich people and trying to help disadvantaged people is not Marxism. This is well trod territory and political scientists agree this is not Marxism.

    Splitting people up into categories and then insuring that there are equal outcomes for each category is neo-Marxism. And, again, this is pretty well agreed on by political scientists.

  71. H July 16, 2021 4:01 pm

    @Richard Schafer – from thedailypoliticalpress.com, the senators voting against were Senators Ted Cruz from Texas, Ben Sasse from Nebraska, Josh Hawley from Missouri, Tom Cotton from Arkansas, John Kennedy from Louisiana and Marsha Blackburn from Tennessee.

    No surprise.

  72. Anon July 17, 2021 9:07 am

    Night Writer,

    Marxism is insuring equal outcomes. Taxing rich people and trying to help disadvantaged people is not Marxism.

    Contrast that please with the “well trod” quote that I provided at 66.

    You may need to be a bit more precise.

  73. Anon July 19, 2021 9:30 pm

    RTFMPEP,

    Serious question for you: do you think that authoritarianism only exists from the Right?

    Second serious question for you: are you aware the today’s largest harbor of hate “for America” comes from the Left?

  74. Night Writer July 20, 2021 10:10 am

    RTFMPEP @73 >>In the end, no one will hear the screams of the America-hating Rightist fascist filth as the hogs tear them apart.

    Unbelievable the way these ideologues’ proof or evidence that someone is an ‘ist (or some horrible thing) is that they disagree with the ideologue. No other evidence is needed. You disagree in any way with one of these ideologues and you need to d i e.

    Really dangerous people.

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