The D. C. Circuit issued only one decision this week. In Ohio Nuclear-Free Network v. Nuclear Regulatory Commission, the Court rejected a petition challenging the agency’s grant of a license to produce uranium for failure to prepare the analysis called for by the National Environmental Policy Act. In an opinion written by Judge Henderson (within one month of oral argument, no less!) and joined by Chief Judge Srinivasan and Senior Judge Edwards, the Court held that it lacked jurisdiction to review the petition under the Hobbs Act because the petitioners did not participate in the proceedings before the agency.
For people of a liturgical bent, like me, one of the most memorable and pleasing features of the life of a court is its insistence on formality and ceremony. On Thursday, the Court assembled for the investiture ceremony of Judge J. Michelle Childs. The ceremonial courtroom was filled with dignitaries and well-wishers including D. C. Circuit alums Justices Brett Kavanaugh and Ketanji Brown Jackson, and Attorney General Merrick Garland. General Garland read Judge Childs’s commission, and Justice Jackson administered the oath of office. Judge Childs’s home state of South Carolina was well-represented in the audience and on the program. Speakers included Representative James Clyburn; Justice Jean Hoefer Toal, former Chief Justice of the Supreme Court of South Carolina; Judge Richard M. Gergel of the United States District Court for South Carolina; Judge Ann Claire Williams, recently retired from the Seventh Circuit; James Tillman, representing Judge Childs’s family; and Judge Childs herself. A good time was had by all!
Which brings to mind another ceremonial gathering of the D. C. Circuit that took place in September for the unveiling of the portrait of Senior Judge David S. Tatel.
Judge Tatel honored me by asking that I deliver prepared remarks. With his permission, here they are:
When I was on the D. C. Circuit, I always began the orientation of my law clerks with a story about a phone call I received from a good friend the day after my Senate confirmation. Knowing that I needed counsel about being a judge, my friend commended to me the training he received from his judge the first day of his clerkship on the D. C. Circuit many years ago.
Resolving a case properly required two tasks, his judge taught. First, the judge must learn the facts of the case because the parties deserved to know they have been heard. Second, the judge must think long, hard, and deep about the just result, the fair outcome, the equitable disposition. Once the judge figures that out, he looks for law to support his decision.
I told my clerks that I would do my best to heed the first part of my friend’s advice – learn the facts of the case – but that I would do my best to completely ignore the second part of his advice. A judicial conservative, which is what I wanted them to help me to be, is not always a political conservative. Rather, a judicial conservative is a judge who would never displace the law with her own sense of what is just, fair, and equitable. My ideal of a judicial conservative, I told them, is . . . . . . . David Tatel. I would pause for effect, knowing my statement would catch them by surprise. Watch Judge Tatel closely, I urged, and you will see a judge who does his best to understand the facts and the law and then applies that law to the dispute at hand even though he may not favor the outcome the law requires.
Only once did a clerk recoil at my description of Judge Tatel as the model of a judicial conservative. Although the clerk said not a word, his body language lodged a protest. I’m confident that my praise for Judge Tatel confirmed this clerk’s suspicion that I had lost my way, rekindling his disappointment that he hadn’t been hired by Judge Kavanaugh!
But here’s the rest of the story. At the end of the term, the clerk stuck his head into my office and asked if he could have a moment. Hearkening back to that first day of his clerkship, he admitted that my comment about Judge Tatel had bothered him, but he wanted me to know that he had taken up my challenge to watch Judge Tatel carefully and had come to realize that I was right. Judge Tatel, though a political progressive, is a judicial conservative.
I’m sure that Judge Tatel and I have a different list of favorite Acts of Congress, but on the role of a judge under the Constitution we are in complete agreement. Judges are agents of lawmakers and not makers of law. Judge Tatel and I didn’t always agree about what the law required, but we always agreed that it was the law we must apply. At her confirmation hearing Senator Kyl asked Justice Kagan whether she agreed that five percent of the cases called for a judge to rely on what is in her heart rather than the law. Her response captured Judge Tatel’s view, “It’s law all the way down, Senator.”
Two cases Judge Tatel and I worked on stand out in my memory. The first was Jones v. United States, where police had put a GPS tracking device on a car even though they lacked a valid search warrant. The media descriptions of the case assumed, as they often do, that the views of the members of the panel could be easily divined simply by reference to the President who had appointed us. The press would have been flabbergasted by the discussion that unfolded at conference. Even I was! Doug Ginsburg thought this? David Tatel suggested that? Here were judges wrestling with what the 4thAmendment meant in an entirely new context. There was no agenda other than to figure out what the law required. That conference stretched on for hours that day. We reached consensus only after months of further discussions.
The second case was Shelby County v. Holder. I joined Judge Tatel in upholding the preclearance requirements of the Voting Rights Act. Our determination was short-lived, however, and Judge Williams’s dissenting views prevailed at the Supreme Court. I wish the public could have witnessed the multiple discussions among our chambers stretching over months. We struggled with the interplay of fundamental imperatives of the Constitution that were in tension, each judge recognizing what was at stake and none thinking less of the other for simply disagreeing. Judge Williams’s dissent was marvelous. Judge Tatel’s opinion was simply more marvelous. “Political hacks”? “Partisans in robes”? Nothing could be further from the truth.
I have been speaking about my admiration for David Tatel as a jurist, but I will close by speaking about my admiration for David Tatel as a person who has dedicated his life to public service.
Early on in our friendship, we realized that we shared an admiration for Robert F. Kennedy, who underwent a transformation from being a privileged man of ambition to a champion of the dispossessed. Both of us had been inspired to enter public service in large measure because of Bobby Kennedy — David as a progressive; me as a conservative. [If it puzzles you that a conservative could admire Kennedy, come talk to me at the reception.] David and I have shared with one another articles, books, documentaries, and stories about Kennedy whose final years exemplified the exhortation of Mitch Daniels: “Our first thought is always for those on life’s first rung and how we might increase their chances of climbing.” David’s entire life has personified Daniels’s charge.
And although David and I may disagree from time to time about how best to help those on the first rung of life’s ladder climb, we agree that must be our first thought always.
God bless you, David Tatel. And God bless Edie and the entire Tatel family.