D.C. lawyer Richard Taranto, nominated for a slot on the U.S. Court of Appeals for the Federal Circuit, handled some tough questioning during a Senate Judiciary Committee hearing Wednesday over his views on the Defense of Marriage Act and whistleblower litigation.
Sen. Chuck Grassley (R-Iowa), the committee's ranking minority member, said those issues would be likely to come up in the Federal Circuit, which hears patent and trademark disputes, international trade matters and veteran claims cases. This is the only vacancy on the court.
Taranto, a name partner at Farr & Taranto, ducked many of the questions on those topics, saying it would be unfair to litigants in future cases who might sense they have an advantage.
When asked about Attorney General Eric Holder Jr.’s decision to no longer defend the marriage act, Taranto said: "I don’t have a view about that, that it feels appropriate for me to discuss here." When asked about the recent poor record of whistleblowers in appellate cases, Taranto said: “I have not had any experience under that particular act.”
Taranto, his wife and one of his children seated behind him, was more open about his experience as a law clerk for former U.S. Supreme Court Justice Sandra Day O’Connor, and about his time as an advocate before appeals courts, including 19 times before the Supreme Court.
Taranto said he learned many things from O’Connor while serving as her clerk from 1983-1984.
“One of them was the energy and concentration she brought to what was then an extraordinarily busy docket,” Taranto told the committee. “I learned a lot about the ability to pierce through what can be mountains of paper to identify what is central to the disposition of the case. I learned a lot about the value of writing narrowly that is tied to the facts of the case.”
The record for the hearing will remain open for a week, and after that his nomination will have to be put to a vote in the Senate Judiciary Committee, followed by an approval by the full senate.
President Barack Obama nominated Taranto for the slot three months ago. Obama’s previous selection for the slot languished for 16 months before withdrawing his name from consideration.
The hearing about Taranto came the day after Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) made another statement urging action filling languishing judicial vacancies.
Leahy called the delays “as damaging as they are inexplicable” and blamed Senate Republicans for failing to move forward with votes on judicial nominations “that have received broad, bipartisan support.”
A total of 19 judicial nominations are pending on the Senate floor, Leahy said. Fourteen of the nominations were passed to the full Senate by the Judiciary Committee in 2011, including a dozen nominations that received unanimous support from the 18 members of the committee.
“These highly qualified – consensus – nominees should be confirmed without further delay. They should have been confirmed last year,” Leahy said. “One hundred and thirty million Americans live in circuits or districts with a judicial vacancy that could be filled if Senate Republicans would consent to votes on these nominees. The delays are as damaging as they are inexplicable.”
But Grassley blamed Obama for unfilled judicial vacancies and said this week’s hearings show judicial vacancies are being filled.
“So even as we continue to hear concerns about the judicial vacancy rate and claims of obstructionism, I would note we are making progress as we continue to confirm judicial nominees,” Grassley said in a statement.
“But let me emphasize again, that for more than half of the vacancies, including those designated as ‘judicial emergencies,’ the President has failed to submit a nomination,” Grassley said. “So critics need to look at the beginning of the process when commenting on vacancies.”
Taranto is a 1981 graduate of Yale Law School and, in addition to clerking for O'Connor, also served as a clerk for Judge Robert Bork of the United States Court of Appeals for the District of Columbia.
Taranto joined the Washington firm Onek, Klein & Farr in 1984. He left after a couple of years to join the Solicitor General’s Office. He returned to the firm, now known as Farr & Taranto, in 1989.
Since 2009, Taranto has served as a member of the Appellate Rules Advisory Committee for the United States Judicial Conference.
Obama's announcement follows the news that Wilmer Cutler Pickering Hale and Dorr appellate partner Edward DuMont withdrew his nomination for the spot on the Federal Circuit. DuMont, nominated last year, would have been the first openly gay federal appeals court judge.