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As you probably are aware already, Chicago attorney Tiffany Cunningham has been nominated to fill Judge Wallach’s seat on the Federal Circuit when he takes senior status. I don’t think it is much of a stretch to say that nominee Cunningham will be confirmed by the Senate. One of the interesting questions that Chief Judge Prost or soon-to-be Chief Judge Moore will have to tackle is when should the swearing-in ceremony take place. My impression is that 28 U.S.C. §44(c) still applies:

“While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of the Federal Courts Improvement Act of 1982, and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

28 U.S.C. §44(C).

Presumably the swearing-in ceremony — or at least the beginning of active service, if swearing-in does not initiate active service — would need to take place after nominee Cunningham has established residency in D.C., Virginia, Delaware, or Maryland. My understanding is that it takes six months to establish permanent residency in D.C. and Maryland, and twelve months to do so in Virginia. Delaware requires six months in the state, but might not be effective until twelve months have passed. So, assuming the nomination process moves along expeditiously, it won’t be until at least October that the future-Judge Cunningham can take the bench. We’ll see if the Federal Circuit takes a different approach to the word “reside” in the statute, though. (I think most people would agree that 28 U.S.C. §44(c) is a dumb law, anyway.)

If you are interested in some of the nuances of the nomination process, see this post from back in 2015: The Circuit Court Appointment Process, Post Senate Confirmation.

The Supreme Court heard oral argument today in U.S. v. Arthrex. You can listen to the audio here: [Link]. The audio cuts out for a few minutes at the one hour mark and then resumes a few minutes later.

I noticed this evening that the Supreme Court appointed an amicus to argue on behalf of the S.E.C. ALJ’s in the Lucia v. SEC case a few years ago. The main reason was that the government changed position during the appeal — so there was nobody left to present the position of the ALJ’s.

It strikes me as odd that people who have a lot to lose in the Arthrex case — the PTAB judges — have nobody arguing directly on their behalf. They are facing loss of certain employment protections, yet no amicus has been appointed for them by the Court — nor was an amicus appointed for them at the Federal Circuit.