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Are lengthy concurrences boosting SCOTUS prospects for federal appeals judge?

Posted May 30, 2013 6:10 AM CDT
By Debra Cassens Weiss

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Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit is known for writing lengthy concurrences, and he stayed true to form in a decision on Tuesday for Comcast in a dispute over its handling of the Tennis Channel.

Kavanaugh was on a three-judge panel that reversed a decision by the Federal Communications Commission against Comcast, Reuters and the Wall Street Journal (sub. req.) report. The FCC had ruled Comcast improperly placed the Tennis Channel in a more expensive tier than its own Golf Channel and NBC Sports Network. The D.C. Circuit said in its opinion (PDF) there was no evidence that Comcast discriminated against the Tennis Channel, and it had no obligation to treat the channel the same as its own sports networks.

Kavanaugh’s concurrence was 15 pages longer than the panel’s 11-page ruling. According to Reuters, Kavanaugh’s habit of writing long and detailed concurrences “has pushed his name to the top of lists of potential U.S. Supreme Court nominees under any future Republican administration.”

Kavanaugh has another link to the Supreme Court, the National Law Journal reports in a separate story. One of his clerks is Philip Alito, the son of Justice Samuel A. Alito Jr. Philip Alito, a graduate of Duke University School of Law, was a former summer associate at Gibson, Dunn & Crutcher; the firm’s hiring partner says it hopes to welcome him back. Speaking through a Supreme Court spokeswoman, Justice Alito said he plans to adhere to a Supreme Court policy statement on recusals if his son goes into private practice.

The NLJ suggests another possibility for the younger Alito: “clerking at his father's court, a path that numerous Kavanaugh clerks have taken.”

Hat tip to How Appealing.

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