Notice & Comment

D. C. Circuit Review: Reviewed — Investiture of Judge Bradley N. Garcia

The D. C. Circuit issued no opinions last week, but gathered en banc in the Ceremonial Courtroom of the U. S. Courthouse in D. C. on November 3 for the investiture of its newest member, Judge Bradley N. Garcia. I cannot report objectively on this matter because Judge Garcia clerked for me back-in-the day, which, as more than one speaker at the ceremony mentioned, was not that long ago! (Judge Garcia is 37 years old, but he does have some gray hair!)

It won’t be surprising to learn that I think the world of him and am confident that he will be on the D. C. Circuit what he has been everywhere else in his life: excellent, thorough, and kind. Chief Judge Srinivasan presided at the ceremony. Judge Garcia’s three young children led those assembled in reciting the Pledge of Allegiance. Remarks were given by Jonathan Hacker of O’Melveny & Meyers, yours truly, Justice Elena Kagan, for whom Judge Garcia clerked on the Supreme Court, and Judge Garcia’s father, Nelson Garcia. The Attorney General read Judge Garcia’s Commission from the President. Justice Kagan administered the Oath of Office. Judge Garcia’s wife and mother helped him don his judicial robe before he offered remarks of appreciation and took his seat on the bench.

With Judge Garcia’s permission, my contribution to this week’s issue of this blog is the remarks I gave at his investiture.

I had the great pleasure of spending a year in chambers with Judge Garcia when he chose to clerk for me. He had other options. That he took a gamble on me is a fact I greatly appreciated then and value even moreso now.

Back in the good old days when the selection of law clerks followed some semblance of order, I can remember well the phone calls I received from Professors Jeannie Suk Gerson and Jack Goldsmith at Harvard Law School. Their enthusiasm for Judge Garcia was boundless and infectious. Holding them in high regard, I viewed the ensuing interview as a mere formality. As I recall, that interview never took place. At the appointed time for our meeting, Judge Garcia was stuck in a traffic jam. He placed a frantic and embarrassed phone call to chambers. When I got on the line, I made him an offer, which he accepted immediately. (The non-interview interview is a technique I learned from Chief Judge Garland and Justice Kavanaugh.) And why not jump at my good fortune instead of pretending to be more judicious? Judge Garcia’s academic record at Hopkins and Harvard was spectacular, and everyone who knew him spoke of him in glowing terms. (We did check that out.)

Judge Garcia’s work in chambers matched his academic record, but there were two attributes that stood out beyond his brilliance. First, Judge Garcia was genuinely humble. Although everyone else thought him a natural for a clerkship on the D. C. Circuit and later on the Supreme Court, he could never quite understand his good fortune. He was genuinely surprised at the opportunities that were open to him because of his record. And he worked hard and listened carefully to those around him, assuming that each of us had something important that he could learn from. Second, and this is related, he worked hard at creating a collegial chambers, which was a challenge given the fact that I didn’t hire based on ideology. Which meant that sometimes – and certainly in the year Judge Garcia was in chambers – we had clerks with decidedly different views about life, the law, religion, politics, sports, you name it. His year, Judge Garcia’s fellow clerks were a protégé of Harold Koh who had worked in the Obama State Department and was later hired by Justice Stevens, a protégé of John Yoo who was later hired by Justice Thomas, and a graduate of Patrick Henry College and Harvard Law School who had been home-schooled and is now the Republican Solicitor General of West Virginia. Into this mix landed Judge Garcia, who became an indispensable component in making our chambers a collegial place where all views were respected even if not shared.

And these attributes have remained with him. I would take great delight in conversations I had over the years with Walter Dellinger who would report to me Judge Garcia’s accomplishments as a lawyer under Walter’s tutelage at O’ Melveny & Myers, and is no doubt pleased today. That progress was fueled by Judge Garcia’s brilliance, humility, and collegiality. Those attributes will make him a great judge and a trusted colleague on the D. C. Circuit. I promise you that.

But even more than that, those attributes will serve as a model to those who appear before him in court and to the citizenry at large of the type of reasoned discourse and respectful disagreement which is so lacking in a public square that suffers from a toxic political polarization that threatens the Republic. Judge Garcia’s example points the way forward.

We are gathered today to witness Judge Garcia take the oath of office. I will resist the temptation to talk about the role of the oath in A Man for All Seasons. Judge Garcia has heard that from me ad nauseum. Instead, I’ll offer a word or two about the oath under the Constitution.

There are four steps to becoming a federal judge. First, you must be nominated by the President. Second, you must be confirmed by the Senate. Third, the President, having received the consent of the Senate, must appoint you. But that’s not enough. You must also take the oath of office before you get your first paycheck and before you don the robe.

Article VI of the Constitution requires that all state and federal officials “shall be bound by Oath or Affirmation, to support this Constitution.” The wording of the President’s oath is set forth in the Constitution itself. Congress created the wording of the oath for all other officials, including judges, in 1789. It has been tweaked a time or two since, but this is the oath Judge Garcia will take today.  

The Framers of the Constitution believed in oaths. They refer to oaths in three separate places in the Constitution. Why all this talk of oaths? It seems a bit old and stuffy to our modern sensibilities. Well, it is old and stuffy. The oath has a long history in the law, rooted in a fundamental belief – which seems incredible to the cynic — that the oath has the capacity to transform its taker.

The Framers believed that taking an oath was not mere ritual or empty ceremony. If you want an example of this belief from popular culture, watch episode five of the first season of “The Crown”. That episode portrays the coronation ceremony of Queen Elizabeth II. It will give you some sense of the power of the belief that the oath is intended to be transformational.

In the oath, Judge Garcia makes a solemn promise to the citizens of the United States who have entrusted him with his important responsibilities, that, with God as his witness and his help, he will be a different person when acting as a judge than he is when acting as Brad Garcia. When acting as a judge, Judge Garcia’s primary loyalty will not be to his family, his political sensibilities, his friends, or his church, but to “the Constitution and laws of the United States,” to which he promises that he “will bear true faith and allegiance,” and will “support and defend . . . against all enemies, foreign and domestic.”

I know of no one better suited to this grave responsibility, which is so needed at this perilous moment in our nation’s history, than Judge Bradley N. Garcia.

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