Notice & Comment

D.C. Circuit Review – Reviewed: In Pursuit of our Common Calling

The D.C. Circuit did not decide any cases this week. But that doesn’t mean there is no news. To the contrary:

What a wonderful — and sobering — sentiment.

The D.C. Circuit is a serious place and when it is at its best, the judges truly have a common calling. I recall (as I’ve recounted before) then-Chief Judge Edwards’s response to the suggestion that party affiliation determines how cases are decided:

“My greatest frustration over the years has been in attempting to debunk the unfounded suggestions in the media and among some legal scholars that judicial decision making is largely influenced by a judge’s ideological preferences,” [Chief Judge Harry] Edwards said in an interview with the publication Legal Times in 1999.

Edwards was particularly angry about a story in The Washington Post suggesting that an outcome in the Microsoft appeal could be predicted by whether the appeals panel had more Democrats or Republicans.

“In my view, the article was distressing, and truly offensive to everything that our judicial system stands for,” Edwards told Legal Times.

“It suggested to the world that, because Harry Edwards was appointed by President Carter, it was clear how I was going to vote. If I had Microsoft to decide tomorrow, I haven’t the faintest idea how I would vote, because I have yet to examine the record, consider the trial court’s findings, or research the law. How then does the press claim to divine my views?”

To be sure, I’m not Pollyannaish. In hard cases, judges will not always agree.* Even so, a recent statement by Justice Clarence Thomas comes to mind:

Later on, as I completed my second Term on the Supreme Court, then-Judge Ginsburg was nominated to replace Justice Byron White. One of my colleagues asked whether I knew her and whether I thought she would be a good colleague. I immediately responded that she would be an outstanding Justice and a delight to work with. In my short time as a judge and as a member of the Court, I had learned that, unlike elsewhere in the city, disagreement was not the controlling factor in relationships among judges. Character and work ethic were far more important. I expected Judge Ginsburg would be an excellent colleague, and her tenure converted my assessment to a prophecy.

Culture matters. And especially for judges, it is important to reinforce cultural norms that encourage “the ‘cold neutrality of an impartial judge.” So it is worth pausing to reflect on Chief Judge Srinivasan’s welcoming statement.

And with that, welcome Judge Jackson to your new common calling. Congratulations!

* See A Collegial-ish Court.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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