The D.C. Circuit is frequently home to future SCOTUS superstars, with three Justices having been former D.C. Circuit judges, a fourth having been a D.C. Circuit nominee, and a D.C. Circuit judge waiting to join the high court in a few days. As such, it’s been a matter of some controversy that the court has never had a single hispanic judge. The last hispanic nominee to the court, Miguel Estrada, was never confirmed and no president of either party chose to fill that gap for the last twenty years. However, President Biden’s nomination of Bradley Garcia could add a young, dynamic voice to the court who would also be the first Hispanic on the bench.
The 35-year-old Garcia received a B.A. from Johns Hopkins University in 2008 and a J.D. from Harvard University in 2011. After law school, Garcia clerked for Judge Thomas Griffith on the U.S. Court of Appeals for the D.C. Circuit and then clerked for Justice Elena Kagan on the U.S. Supreme Court.
In 2013, Garcia joined O’Melveny & Myers as an Associate and became a Partner in 2021. In 2022, he moved to become Deputy Assistant Attorney General with the Department of Justice where he currently serves.
History of the Seat
Garcia has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit to be vacated on September 1, 2022 by Judge Judith Wilson Rogers.
After his clerkships, Garcia joined O’Melveny & Myers as an associate, and transitioned into becoming a partner in 2021. At the firm, Garcia largely worked in commercial litigation, focusing largely on appellate litigation.
For example, Garcia represented Google before the Federal Circuit in litigation involving patents that Google had convinced the Patent Trial and Appeal Board (“PTAB”) to limit. See Nadia Dreid, Federal Circuit Mulls Overturning Google Victories at PTAB, Law360, Feb. 3, 2021. The PTAB decision was upheld by the Federal Circuit in per curiam opinions. See Andrew Karpan, Fed. Circ. Quickly Signs Off on Google PTAB Wins, Law360, Feb. 4, 2021.
Notably, Garcia represented Samsung and LG in suits involving patent infringement that were filed before Judge Alan Albright in the U.S. District Court for the Western District of Texas. See Ryan Davis, Fed. Circ. Faults Albright’s OK of Patent ‘Venue Manipulation’, Law360, June 30, 2021. Garcia was able to get mandamus from the Federal Circuit to move the case from Albright’s courtroom, successfully arguing that the plaintiffs in the case were attempting to manipulate venue to find a favorable judge See id. An effort to seek en banc review of the grant of mandamus by the plaintiffs failed as well. See Dani Kass, Full Fed. Circ. Won’t Review ‘Venue Manipulation’ Ruling, Law360, Aug. 31, 2021.
Garcia later pushed the Federal Circuit to move another suit from Albright’s courtroom involving Google. See Tiffany Hu, Albright Keeps Making Same Mistakes, Google Tells Fed. Circ., Law360, Oct. 18, 2021. Albright granted the transfer in November 2021, while criticizing the Federal Circuit for “muddled” rulings. See Dani Kass, Albright Gets Defensive While Allowing Google Transfer, Law360, Nov. 8, 2021.
As part of his pro bono work, Garcia argued one case before the U.S. Supreme Court. See United States v. Palomar-Santiago, 593 U.S. __ (2021). The question in the case was whether, under 8 U.S.C. 1326(d), an immigrant who was deported under an erroneous classification of his conviction as a “crime of violence”, needs to establish an additional two elements in order to secure relief from deportation. In a unanimous opinion by Justice Sonia Sotomayor, the Supreme Court ruled against Garcia’s client and found that all three elements were required by the statute even if the immigrant could establish that his deportation was conducted under an erroneous classification of his conviction. See id. In another case, he was part of the legal team representing El Paso County in a suit challenging the diversion of Department of Defense funds to build a border wall. See Daniel Wilson, High Court Vacates Border Wall Case After Construction Halt, Law360, July 2, 2021.
In February 2022, Garcia joined the Department of Justice as Deputy Assistant Attorney General for the Office of Legal Counsel, responsible for advising on the legality of executive actions. See Justin Wise, O’Melveny Appellate Atty Takes Senior DOJ Legal Office Gig, Law360, Feb. 8, 2022.
When Justin Walker was nominated to the D.C. Circuit two years ago, the 38-year-old was criticized by some for being too young to join the court. Garcia, at 35, is even younger. However, unlike Walker who spent most of his legal career as an academic, Garcia has extensive experience with litigation, having argued multiple appeals, including at the Supreme Court.
However, it is nonetheless likely that Garcia’s youth is likely to be a strong motivator for opposition to his nomination. While Garcia is still more likely than not to join the bench (given that Republicans had oked the even younger Kathryn Mizelle to the bench two years ago), his confirmation is nonetheless likely to be a fight.