Molly Silfen – Nominee to the U.S. Court of Federal Claims

Patent attorney Molly Silfen, who is coming off a stint as a staffer with the Senate Judiciary Committee will have an opportunity to go before the Committee again, this time as a judicial nominee.

Background

Silfen received a B.A. from Yale University in 2002, and her J.D. from Harvard Law School in 2006. After graduation, Silfen joined Finnegan Henderson Farabow Garrett & Dunner LLP.

In 2008, Silfen completed a clerkship for Judge Alan Lourie on the U.S. Court of Appeals for the Federal Circuit and then returned to Finnegan. In 2013, she joined the U.S. Patent & Trademark Office as a solicitor, where she has worked since. Silfen nonetheless completed details at the Department of Justice’s Civil Division and with the U.S. Senate Committee on the Judiciary.

History of the Seat

Silfen has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government. Judges to the CFC are appointed for 15-year terms, and can be reappointed. The seat Silfen was nominated for opened up on July 13, 2018, with the move to senior status of Judge Susan Braden. On October 3, 2019, the Trump Administration nominated administrative patent judge Grace Obermann to replace Braden. However, Obermann’s nomination never moved and was left unconfirmed by the end of the Congress. Biden appointed Silfen on February 27, 2023.

Legal Experience

Silfen’s career is split between her time in private practice and her time working as a patent solicitor. In private practice, Silfen worked with Judge Kara Stoll, appointed in 2015 to the U.S. Court of Appeals for the Federal Circuit, on behalf of Cardiac Pacemakers in a patent infringement action against St. Jude Medical, Inc. See Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 576 F.3d 1348 (Fed. Cir. 2009). She also represented defendants in infringement actions. See, e.g., EPlus, Inc. v. Lawson Software, Inc., 700 F.3d 509 (Fed. Cir. 2012).

In her role with the U.S. Patent & Trademark Office, Silfen has joined the legal team in a number of cases before the U.S. Supreme Court. See, e.g., Matal v. Tam, 137 S. Ct. 1744 (U.S. 2017); Iancu v. Brunetti, 139 S. Ct. 2294 (U.S. 2019). Notably, Silfen was part of the government’s legal team seeking approval of the current system of Administrative Law Judges hearing cases regarding the validity of patents. See United States v. Arthrex, Inc., 141 S. Ct. 1970 (U.S. 2021). In a 5-4 decision, the Supreme Court ruled that the administrative judges in question were appointed in violation of the Appointments Clause of the U.S. Constitution. See id.

Political Activity

Silfen has a few political contributions to her name, including one to President Obama in 2008 and three to New Hampshire Executive Council candidate Leah Plunkett.

Writings

Silfen has frequently written both academically and on the law. As a law student, for example, Silfen wrote on the intellectual property implications of the funding of stem cell research and on the impact of the bans on partial birth abortion on privilege. See Molly Silfen, How Will California’s Funding of Stem Cell Research Impact Innovation? Recommendations for an Intellectual Property Policy, 18 Harv. J. L. Pol’y 2 (Spring 2005). See also M Silfen, I Want My Information Back: Evidentiary Privilege Following the Partial-Birth Abortion Cases, Journal of Health Law (Jan. 1, 2005). As a practitioner, Silfen has further elaborated on patent law. See, e.g., Daniel Kazhdan & Molly Silfen, Inventors Beware: The Danger of Getting Too Many Patents, 60 Santa Clara L. Rev. 289 (2020).

Overall Assessment

Despite her youth, Silfen has gained considerable experience in patent and intellectual property litigation. While her writings are sure to be scrutinized closely in the confirmation process, Silfen should still expect to see a comfortable confirmation.

104 Comments

  1. This nominee seems well qualified for this seat. Perhaps she will be elevated to a lifetime appointment one day. We need President Biden to announce another batch of nominees this week for lifetime appointments now. And when I say batch, I don’t mean one new Article 3 judge like the last batch.

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    • @Dequan

      Siflen sounds more like an ideal choice for the Federal Circuit more than this court. But she’s certainly qualified for it. Her writings on partial birth abortion could get scrutiny. But if she didn’t take sides on the issue, she’ll have no trouble being confirmed.

      Regarding the vacancy in Kansas, it turns out that K.J. Wall and Jacey Hurst both specialize in Health Care Law. That focus would be valuable on any Circuit Court. I was surprised when Hurst didn’t get nominated the first time and I’d be even more surprised if she didn’t get it this time.

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      • I agree Mitch. She would be a fine addition to the Federal Circuit. I expect multiple vacancies in the court be the end of Biden’s first term but I suspect at least one of those vacancies would be filled by somebody from Delaware.

        As for the 10th, I truly hope this isn’t a drawn out process. There had to be ramblings about Wamble backtracking as far back as September when he was passed over for the first SJC hearing he was eligible for. If the administration didn’t start working on a plan B by the end of October, shame on them.

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  2. Besides Jacy Hurst, Carl Folsom would be a great nominee for the 10th Circuit vacancy.
    Yes, it would be a white man taking a seat a black man was previously nominated to but one who is far more progressive.
    Still likely to be Hurst though.

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    • While that is a big red flag, lower court judges’ positions on gerrymandering are *mostly* irrelevant because SCOTUS ruled that partisan gerrymandering is non justiciable. However, I could be wrong; after Dobbs I thought lower court judges’ positions on abortion were irrelevant until Kacsmaryk got assigned to this bogus case that threatens a judicially imposed national ban on abortion medication (even Trump didn’t go this far, his FDA banned getting the abortion pill by mail but still allowed patients to get it in person).

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  4. As for the U.S. Senate, it will be meeting in a couple hours to vote on District Judges. They will Robert Ballou, of western Virginia, Andrew Schopler of southern California, and Arun Subramanian of southern New York.

    Subramanian is a Blue Ribbon nominee. He’s a legal superstar. None of these nominees generated strong objections and have some level of bipartisan support.

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  5. Yep, really the only potential opening on the 2nd would be if Raymond Lohier just decided he wanted to go into private practice to earn more money. The rest of the judges are either Biden/Trump picks or the GWB chief justice. Probably more likely that Allison Nathan gets elevated to the Supreme Court and a vacancy gets created that way.

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  6. I just can’t get excited about the Federal Circuit, since it deals MAINLY with patent laws…Now I totally get that people who have cases before this court would say otherwise, but Federal Circuit nominations are like NFL pre season football or a vacation to Buffalo – BLAH !!

    Even if Dale Ho was nominated to the Federal Circuit, I’d still say – BLAH

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    • @Rick

      While it’s true this as well as most Article 1 courts aren’t usually a reason to get excited over, I still want Biden to fill all of the seat. First off, there are opportunities for future elevation filling these seats. Florence Pan is a good example albeit I’m not happy she’s on the DC circuit.

      Another good example is Adrienne Jennings Noti who is currently stuck on the senate floor & has been awaiting a vote to the Superior court of DC for over a year & a half. She was a legal fellow with the Center for Reproductive Rights, which is probably the reason all of Biden’s nominees to that court have been voice voted already & she is still waiting for a vote.

      And of course another reason it’s important to fill these seats is to make sure a future Republican president doesn’t. They could use the lower courts to stack it with crony’s who would be easier to confirm for elevation if they were sitting federal judges, even on Article 1 courts.

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      • In my haste in the last post, I realized right after I clicked post comment, the nomination was for the Court of Federal Claims not the Federal Circuit….But I’ll still give myself a .5 point since I do struggle to get excited about Court of International Trade, Federal Circuit, Court of Federal Claims, US Tax Court, and perhaps the military themed court nominees

        I do agree with you though about having Biden fill the seat….That’s true, better to be filled by the D than the R

        Let’ s see what happens this week on the floor they have gaveled in for today….At least hope they can get to the Garcia nomination, he should get 3 GOP votes, unless they had last minute decision to not support his nomination

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      • I also hope this week in addition to a new batch (Which is #1 on the needed list) & more confirmations (Which is #2), hopefully we get an update on the two senators out this week as well. If we gt an update that Feinstein will be back next week, we can still salvage 3 of the 5 weeks in session period & get some heavy hitters confirmed. If she will be out for an extended period of time, then were possibly not looking until after the Easter recess until they can be confirmed.

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  8. Current district court vacancies in states with two Democratic Senators.

    Already vacant:
    -District of Connecticut (2)
    -Northern District of Illinois (1)
    -District of Maryland (2)
    -Eastern District of Michigan (2)
    -Eastern District of Pennsylvania (1)
    -Middle District of Pennsylvania (2)

    Future vacancies:
    -Northern District of California (1)
    -Southern District of California (1)
    -District of Minnesota (1)
    -District of New Jersey (1)
    -Southern District of New York (1)

    I will go through my picks for each vacancy at a later point.

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    • I expect another batch this week at some point. We could get a circuit court nominee for Maryland if Cardin has finally checked is ego at the door. It’s also possible to get the 7th nominee & if so, possibly the two district court vacancies for Indiana without a nominee as well.

      Of the seats Ethan mentioned above, we could also get nominees for Connecticut (2), Maryland (Probably only 1 of the 2 vacancies since the second was announced fairly recently), Michigan (2) & either or both for California.

      I doubt we will see the others this week for the following reasons;

      Northern District of Illinois – This seat became vacant rather recently. There are 3 pending recommendations so whoever is picked is probably being vetted as we speak.

      Pennsylvania (3) – I don’t think we will see these nominees until after Fetterman is back.

      Minnesota – This vacancy is fairly recent.

      New Jersey – They will probably wait for a second vacancy such as if Salas is chosen for the 3rd circuit so that they can have two vacancies. Then Booker & Menedez can each pick one. One can be bad & the other can be horrible if not both horrible.

      Southern District of New York – Schumer usually announces his picks in advance.

      Liked by 1 person

  9. @Dequan

    For the northern Illinois vacancy, I’m predicting that Nicholas Gowen will be the nominee. Gowen’s very well-qualified. He’d bring more diversity to the court, but also has a traditional background, working in corporate law and specializing in out of court settlements. He’s a Democrat, but other than Barack Obama in 2008 hasn’t been a frequent donor and hasn’t contributed to any campaign since 2016.

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      • Neither the Northern district of Illinois or the Delaware US Attorney positions are being filled. Senator Durbin asked Biden to hold over the Trump US Attorney in Chicago at the beginning of Biden’s term because he was working on a major case. The Delaware holdover is due to him being in charge of the Hunter Biden investigation. Biden didn’t want to replace him.

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  12. I would be stunned if Delaney is confirmed before summer recess….Many nominees, less controversial than him, have been stuck in judicial purgatory for over a year (like all the nominees on the calendar numbers 20-30)…He’ll probably be held over 2 weeks in SJC. And Delaney is controversial w/some Democrats, so he won’t be confirmed anytime soon

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  13. “Former U.S. District Judge George Hazel, one of Obama’s youngest judicial nominees, told
    @JgreeneJenna
    that money was “absolutely a factor” in why he resigned from the bench in Maryland to join Gibson Dunn. He has two children approaching college age.”

    I know he gets credit for resigning under the Party that brought him to the dance but it bothers me to no end that some of these younger appointees seem to be using the Federal Bench as a stepping-stone to go & make millions in Big Law. I don’t like this trend at all.

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    • I would love to know if Hazel applied for the 4th circuit vacancy. If he did & wasn’t selected, I’m sure that had a lot to do with him resigning as well. I know the increase in pay isn’t much relatively speaking, but being one step below the SCOTUS might have been enough to make him rethink his decision. Unfortunately he was just too conservative as a judge to realistically be considered. I wish him well

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      • @Jill, I think the process for selecting circuit court nominees varies by state. In her SJC questionnaire, I remember Arianna Freeman saying she initially applied to be a district judge but then Senator Casey recommended she be considered for the 3rd circuit.

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      • Correct. The states vary on the process. Nancy Abudu’s questionnaire said the White House reached out to her directly. Schumer recommended the 2nd circuit nominees. A House member recommended Andre Mathis. Same for Childs & Benjamin (Clyburn for both). It varies

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      • Exactly…there’s an actual posting of an application process for interested District Court candidates to apply, but the WH and/or Senators reach out to candidates themselves for the Circuit. There is no application process to apply.
        It’s basically don’t call us…we’ll call you.

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    • Another person who might be in consideration to US Attorney for the Northern District of Illinois is AUSA Ramon Villalpando (born c. 1981). He would be the first Latino US Attorney in Chicago. Clerked for Judge Ruben Castillo on the Northern District of Illinois and Judge Carl Stewart on the 5th Circuit Court of Appeals. Also used to be a Partner at Jenner & Block. He’s on my list for judges too (if the list Duckworth and Durbin sent is ever exhausted).

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    • Both Cummings & Hunt’s names were in red last week for the meeting that was cancelled. They are both in black like everybody else this week. I wonder if Republicans agreed to count last week as both being held over despite the cancelled meeting. I’ve seen them agree to that before.

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  16. George Hazel’s reasons for retiring sounds a lot like former Judge’s Katherine Forrest (whom Dale Ho will be replacing) reasons for leaving.
    Someone who didn’t come from a lot of money who wants to provide more for their kids then they had growing up along with the fears their current salary wouldn’t be enough for college (speaks volumes about how much it costs these days.) and thus retired from the bench.
    I won’t fault for retiring now.
    At least he did it while under a Democratic president unlike former judges Anne Williams and Chris Droney who retired under Trump and let their seats flip to right wing hacks.

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    • AGAIN…Anne RETIRED (meaning she reached the age & years & probably beyond) after a long & illustrious career as a dedicated public servant. She had every right to leave once she reached retirement age to go & do whatever it is she desired to do.

      You cannot compare that to someone resigning from the bench before retirement age to go & make millions. But yes at least Hazel, Costa, Watford, etc all resigned under the party who brought them to the dance.

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    • Dequan
      Which is very much in line with what Shaheen said yesterday, they are moving on.

      Jill
      Unlike you, I really don’t care when judges serve for a period then leave. How is that any of your business? Do you get to decide exactly when a judge should leave?
      I am just absolutely glad when they do it at a time most appropriate for their party (yes, that was intentional).

      Ethan
      I think Juill is right about circuit court vacancies. Your Freedman example is actually an argument in her favor. She applied for a district court judgeship, but was picked up for a circuit court. Yes, the process differs state by state, but it it typical that circuit court nominees are selected not applied for.

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      • So when I said I wonder if George Hazel applied for the 4th, I meant show interest in any form. There may not be an application like for district court seats, but if a district court judge wants a vacant circuit court seat, whatever means they need to make is the process I meant when I say apply.

        Three confirmations today even short two Dems. Fetterman’s aid said he should be back “soon”. Hopefully we can salvage at least one of the five week session. Now just need a new batch likely by the end of tomorrow.

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      • IMO, true & dedicated public servants value and honor the meaning of “Lifetime Appointment” by making the necessary sacrifices each and every day to serve.

        It may be none of my business, but seeing with my own eyes this new trend of younger appointees using the Federal Bench as a stepping-stone is worth voicing my opinion on.

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      • Yes, it’s fine having an opinion on it. But thankfully your opinion isn’t controlling. We all decide, individually, what sacrifices, if any, we should make. And no one gets to belittle it by saying it isn’t enough.
        Hazel has done his service, and now has decided to leave the bench when a dem is in the WH and dems control the senate. Now, we get a chance to have a better liberal than he was (not that this is what’ll happen). This is always the dispositive thing for me.

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  19. If a judge is motivated exclusively on the almighty dollar, then he or she should stick to the private sector where a 7 figure salary is possible along with the suite at the local MLB and/or NFL team.. 7 figure salaries and suite perks for sports teams (and other perks) won’t be available for federal judgeships…

    Some are truly motivated by public service and some already made their fortunes, so for these people, a federal judgeship is the ideal choice..

    At the end of the day, it just depends on what your motivations are

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  20. As stated before in this forum….It is unusual for a judge to leave the bench before reaching eligibility for retirement, but for two, three, four to leave in recent months when they have decades of tenure ahead of them does raise a question.

    Therefore I do think that Presidents should consider whether their 40-year-old nominee would will leave the bench a decade down the road.

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      • @Frank
        Again, merely repeating this does not make it more pervasive. Can you ***please*** state the harm that occurs with early departures? I cannot disabuse you of a fallacious argument if you don’t state it.
        Would it infirm your argument if 3 judges appointed in their 60’s leave the bench within a decade?

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      • The more expensive someone has, the better they will generally be in terms of understanding the law, especially if they have been in both sides of the aisle in terms of the prosecution and defense. As Harsh has noted, younger judges are much more likely (67 of the last 80 judges as of last summer to resign early were appointed before age 50) to leave the bench prematurely, several of whom as a stepping stone for big law. This is morally disgusting, and exactly the opposite of what a progressive should want. Sadly, the Republicans are much worse right now in terms of nominating candidates who are much more likely to leave the bench early and not take their public service seriously.

        Liked by 1 person

      • The 67 of the last 80 judges statistic is extremely misleading. What is the time period we are talking about for the 80 judges? If I remember correctly, I believe it went back three decades or so.

        If you narrow it down to the last decade or so, I count six judges that have resigned early, it simply isn’t a large number, somewhere less than 3% of all the vacant seats over the past decade have been due to early resignation. That is not a big number, nor a lot of people.

        Liked by 1 person

      • @Frank
        Still no stated injury.
        If I’ve asked this question once, I’ve asked it a million times — yet no answer from you: Besides going against the personal preference of one person on an internet blog, what is the harm from early resignations? Don’t worry, every time you mention this topic, I’ll copy and paste this question in reply until you finally demonstrate the injury you’re professing.

        “The more [experience] someone has, the better they will generally be in terms of understanding the law”
        I understand why you would hold onto this belief for dear life, but the simple fact is all the 45 men who’ve been president have made appointments contrary to this contention. How old was John Marshall when Washington appointed him Chief Justice, leading him to be considered one of the Court’s greatest? 60? 70? How about James Madison’s 33-year-old appointee Joseph Story? I could go on, but hopefully you get the point.

        “This is morally disgusting”
        Really? You and Jill have appointed yourselves High Moral Guardians of Judicial Retirement? Thankfully, you two are just shouting in the wind on this.

        “[E]xactly the opposite of what a progressive should want.”
        Your invocation of progressive here is confused. Just last week you deny being a progressive and I am certainly not one as I have also previously stated, so who is this strawman set up for?

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      • While it may not be the case, it would seem to me that appointing a diverse set of smart legal minds would create a bigger impact on the judiciary than simply nominating a bunch of 30 something unqualified hacks, who lack the necessary experience in trial or appellate court. While I dislike the ABA ratings as a whole, I do agree with their general philosophy regarding the amount of years needed at a minimum to be an effective judge. There will always be exceptions to this, and you have outlined some judges appointed at young ages who made big impacts on the judiciary, but as a general rule the youngest candidate is usually not the best and most experienced with the functions needed to be most effective.

        When a judge resigns early, it creates judicial emergencies and leads to cases spending even more and time in the legal system. Since the lower courts haven’t been expanded in several decades now (and this should be addressed ASAP), there is more of an importance on having plenty of judges on senior status (even if they are hearing only a few cases a year on average) to reduce the workload. High levels of early resignations don’t allow for this flexibility. This is nothing to note how much longer it takes to confirm new nominees than it used to, since just about every nominee will need a roll call vote as opposed to a voice vote or unanimous consent, so any unnecessary vacancies aren’t good for the system.

        I know you have said in the past you are not a progressive. I was speaking more broadly and not directing that at anyone. My apologies.

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    • I will remind everybody over the past two administrations (Over 6 years) I’ve only been able to find a total of six Article 3 judges that have resigned early. That’s South if 3%. You can’t say nominating younger judges is a bad idea when 97% stay on the bench until they reach retirement age. Keep nominating judges in their 40’s if not 30’s president Biden. The numbers overwhelmingly support the idea.

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  21. Weird, I think there’s 2-3 nominees that have had their cloture votes pass but haven’t been brought up for a confirmation vote including at least one circuit judge who they had a cloture vote on before the week off.

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    • Correct. Khan for the 2nd circuit, James Simmons & Gordon Gallagher all are being passed over for the judges that will be confirmed today. Since no judicial cloture motions was sent to the desk yesterday, I will assume they will get their confirmation votes tomorrow or Thursday.

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  23. All due respect to a couple of posters here, some of us belong to different minority groups where the courts are the only protection we have against those who wish to harm us.
    Thus, when someone leaves or takes senior status knowing full well they’ll be replaced with someone opposed to our rights, we rightfully get angry about it, especially when they’re like Chris Droney who told people we had nothing from the man who replaced him.
    The number of en bancs at the 2nd Circuit, which almost never used to have them trying to push the law to the right in blue states show how tone deaf and wrong he was.

    Liked by 1 person

  25. Schopler and Subramanian will fill judicial emergencies so they may not be heavy hitters per se but them getting confirmed matters for the district courts they were confirmed to.
    In fact, every remaining judicial vacancy in NY and CA is an emergency.

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  27. @Jill

    It is not uncommon for judges to resign early. Since 1977, 80 judges have resigned before the age of 65: 10 under Carter, 21 under Reagan, 8 under HW, 5 under Clinton, 19 under W, 10 under Obama, 3 under Trump, 4 under Biden. Of the 80, 1 was quickly elevated after resignation, 5 went to state courts, 6 to the DOJ, 6 to the rest of the executive branch, 2 to politics, 48 to law, 5 to academia, 1 to business, 1 became a bar owner, and the other 6 were due to scandal. It’s also most common in the first two years of a president’s tenure; 38/80 have been in that timeframe, which covers just 16 of the 45 years.

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    • We got the next 2 days of this week & the next 3 weeks (Minus the next 2 Monday’s) the senate will be in session before the Easter week. It would be great if Feinstein & Fetterman could be back for that final full week before Easter. They could get the ball rolling on the heavy hitters before the recess if so.

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    • Counting future vacancies we are at 13 circuit court, just under 90 district court & 2 International court vacancies. Finally making up some ground.

      Biden is at 111 Article 1 confirmations if you count KBJ, Merriam & Pan only once. That’s 119 behind Trump’s 230 (Not counting the 4 judges he nominated & then elevated twice). I don’t think Biden can get 119 more before the end of next year but he can certainly get close. We just need another batch to get things started.

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  32. Here’s what I don’t get: why no confirmation votes tomorrow? I know 2 Dems are out, but Kahn and Gallagher both got Collins, Graham, and Murkowski to vote for cloture on their nominations, and Simmons got Collins, Graham, and Tillis.

    Even with only 49 Dems in place, the addition of 3 Repubs (no one is going to vote for cloture and then against the nomination, especially of a district court nominee), seems like–what is that word?–a majority. Very frustrating.

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