Edward DuMont Asks Obama to Withdraw Federal Circuit Nomination

By Robyn Hagan Cain on November 14, 2011 | Last updated on March 21, 2019

Edward DuMont won't be rounding out the judicial lineup for the Federal Circuit Court of Appeals. DuMont has asked President Obama to withdraw his name from consideration for the final opening on the Federal Circuit bench.

DuMont isn't the first Obama nominee to make such a request this year; Berkeley Law professor Goodwin Liu, now an Associate Justice of the California Supreme Court, withdrew his nomination in May after Republicans filibustered his confirmation vote.

What went wrong?

DuMont, a partner at the prestigious D.C. firm WilmerHale, has argued 18 cases before the Supreme Court and numerous patent cases before the circuit. He had support across the ideological spectrum: from conservative jurists like the Seventh Circuit's Richard Posner to libertarian academics like Eugene Volokh to the six Solicitors General who endorsed his nomination, everyone agreed that DuMont is brilliant.

It has been suggested on this blog that DuMont's confirmation consideration was being delayed because he's openly gay. Had he been confirmed, DuMont would have been the first openly gay judge to serve on a federal appellate court. (Paul Oetken, U.S. District Judge for the Southern District of New York, was the first openly gay judge to be confirmed to the federal bench.)

While no one on the Judiciary Committee ever confirmed that DuMont's sexual orientation caused problems with his nomination, Patently-O reports that Senator Grassley's spokesperson suggested that the delays were sparked by "questions about his background."

Could it be the "questions" were a thinly-veiled criticism of DuMont's personal life?

Others maintain that there's no basis for that conclusion. Yesterday, the National Review reported that DuMont may have simply been stuck in the Judiciary Committee's background-investigation (BI) process, a common barrier to a formal hearing. "Given that Chairman Leahy never scheduled a hearing on the DuMont nomination, it's sensible to infer that DuMont never cleared the BI process. Indeed, I don't see any support for an alternative explanation," Whelan said.

Do you agree with Whelan that holdup was a simple formality? Now that Edward DuMont is out of contention for the seat, whom do you think President Obama should nominate to the Federal Circuit Court of Appeals?

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