Notice & Comment

D. C. Circuit Review – Reviewed: Ceremony at the D. C. Circuit

For weeks during which the D. C. Circuit issues no opinions, some of the contributors to this forum have used the occasion to describe some aspect of the history, work, or culture of the D. C. Circuit. This is such a week because the D. C. Circuit issued no opinion, but it did meet for a portrait ceremony . . . for yours truly. Which makes reporting on the ceremony a bit awkward.

As most of the readers of this forum will know, a judge who retires from the D. C. Circuit or one who reaches the age that allows the taking of senior status is permitted to donate a portrait of himself or herself that will be hung in the courtroom. Usually there is a ceremony in the large Ceremonial Courtroom of the U. S. courthouse at which the judges’ law clerk, who by tradition pay for the creation of the portrait, present the work to the D. C. Circuit. For those of a liturgical bent (as am I), the ceremony is a grand event. The full D. C. Circuit sits on the bench of the Ceremonial Courtroom, frequently joined by the Chief Justice of the United States, who is an alumnus of the court. Many of the District Court judges attend as do several justices of the Supreme Court and other dignitaries. Chief Judge Srinivasan conducts the ceremony with a combination of reverence and wit. Several speakers offer brief remarks praising the judge. The judge offers a brief response of gratitude. The portrait is unveiled. The audience invariably expresses its approval. The Chief Judge adjourns the ceremony, and the judges of the D. C. Circuit come down from the bench to inspect the portrait and greet the judge’s family.

My reporting on the ceremony now moves from “a bit awkward” to “very awkward” as I include an excerpt from my remarks in which I try to make the point that the tradition of collegiality on the D. C. Circuit is not simply a nicety. It’s vital to the wellbeing of the judiciary and serves as a model to the nation about how to push back against the toxic political divide that threatens the Constitution itself.

About my distinguished colleagues on the D. C. Circuit. At my investiture, I said that I held you in awe. My fifteen years working alongside you only increased my respect. A word about two of my colleagues who have passed away since I joined the court. Steve Williams was a towering intellect. When I disagreed with him, I did so uneasily. In fact, my respect for Steve got me into trouble with the Supreme Court. Judge Williams agreed with me that Zivotofsky, 566 U.S. 189 (2012), presented a non-justiciable political question, and so, with some confidence, I wrote the opinion of the court over the eloquent dissent of Judge Edwards. Unfortunately, the Chief Justice and seven of his colleagues thought Judge Williams was wrong. How could that be? I’m still surprised. [I am told that the Chief Justice laughed heartily at this segment of my remarks. I’ll rely on that report. I didn’t have the courage to look him in the eye.] Larry Silberman was a commanding presence. One could have no better ally, no more fearsome opponent. I was blessed with both experiences. His passing triggered much praise for his public service — six presidential commissions! five Senate confirmations!  — but most of the accolades overlooked what I think was one of his greatest achievements. In the words of Judge Edwards, his good friend on the court and in life, “During the 1980s, the court was badly fractured because judges appointed by Presidents of the same party too often sided with one another seemingly out of partisan loyalty.” Judge Silberman worked to change that. According to Judge Edwards, Judge Silberman’s role in bringing about that change “was as important as anything that I have seen during my [many] years on the court. He opted in favor of institutional integrity over personal ideology and political expediency. He helped set the stage for our court to be recognized as a model of collegiality in judicial decision making.”

And that is no small thing, not only for the judiciary but for our nation at a time when we are beset by a toxic political polarization that poses, I believe, an existential threat to the Constitution. . .. It is up to the judiciary to show the nation how to engage in reasoned argument with respect for one another. My colleagues on the D. C. Circuit showed me how to do that. This is how one fulfills the oath to “support and defend” the Constitution. As Yuval Levin notes, “The American Constitution is intended to create common ground. Its structure compels Americans to be a little more accommodating of one another. It gives us practical experience in living and acting together.” Or as Dallin Oaks put it, the Constitution requires that “[o]n contested issues, we should seek to moderate and to unify.”

In July of 1787, the Constitutional Convention was faltering. Many of the delegates feared its dissolution. Yet by September, somehow they had succeeded. One popular history called their achievement “the Miracle at Philadelphia.” I believe in miracles, but typically miracles defy rational explanation. As it turns out, there is no mystery to this miracle. George Washington gave us a rational explanation of how it happened. In his letter transmitting the Constitution to Congress, Washington explained, “The Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” Amity. Mutual deference. Concession. It was only the exercise of those virtues that created the Constitution. Amity. Mutual deference. Concession. Unless we exercise those virtues today in “the peculiarity of our political situation,” we will lose the Constitution that we have sworn an oath to God and our fellow citizens to “support and defend.”

I am grateful to have been part of a court that models that sort of commitment to the Constitution.

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