Collegiality, Judging, and the D.C. Circuit
From filibustered nominees to recess appointments, the D.C. Circuit has been much in the news lately. But for all the blood sport involved in confirming a nominee to the D.C. Circuit, the judges there are surprisingly collegial (a quality that, when I clerked, trickled down to their employees as well).
So it was with some interest that I read Judge David Tatel’s recent speech at the portrait hanging of (now former) Chief Judge David Sentelle. (I’ve received permission to post it in full here). The speech underscores how, for all the political tumult surrounding the D.C. Circuit, the Circuit itself is almost a world apart.
Judge Tatel begins by noting an observer’s likely surprise that a Clinton appointee would speak at the portrait unveiling of Sentelle, Reagan’s choice to replace Justice Scalia. But over the past nineteen years, it turns out that Tatel and Sentelle have “disagreed less than 3% of the time,” an astounding statistic given the common (mis)conception of how the Courts of Appeals operate.
In other words, the vast majority of judges agree on the vast majority of issues the vast majority of the time.
Judge Tatel chalks this up to “restrained decision-making,” or (more familiarly) “judicial restraint.” He relates a few stories about Sentelle to underscore his point, including one about how the two judges tried to write a joint op-ed, but failed because “unconstrained by the rules that bring us together as judges” they were “unable to agree on how to portray certain historical aspects of the issue.”
In fairness, Judge Tatel doesn’t pretend life is always roses. He notes that he and Sentelle “have had our disagreements,” (emphasis in original), and that “despite our best efforts at neutrality, we cannot but see the world – and the law – through the lens of who we are and what we’ve been through.” But even in those circumstances, the D.C. Circuit lives by a “proudly nurtured tradition of collegiality.” Judge Tatel gives special thanks for the particularly good job Chief Judge Sentelle did of “navigating [these] sometimes sensitive waters with a firm but gentle oar.”
The speech is a short five pages and is definitely worth a read. It underscores the noncontroversial nature of the vast amount of Courts of Appeals work, and how much pride the D.C. Circuit takes in its spirit of collegiality even when disagreement surfaces.