The D.C. Circuit Will Tilt Even Further To The Left

Judge Tatel has announced that he will take senior status.

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Judge David Tatel announced that he will take senior status from the D.C. Circuit. By my count, he became eligible for senior status in October 2008, at the tail-end of the Bush 43 administration. Now, one month into the Biden Administration, he has decided to assume senior status.

Update: The Washington Post published this statement from Judge Tatel:

"Serving on the U.S. Court of Appeals for the District of Columbia Circuit has been the highest honor of my professional life, and I've loved every minute," Tatel wrote in a message to his former law clerks this week. "But there is a time for everything, and for me, after 27 years, the time has come to move on and to make room for a new generation."

For the foreseeable future, the D.C. Circuit will have a remarkable leftward tilt not seen since the 1960s. Let's break down the numbers.

There are currently only four active judges appointed by Republican Presidents: Henderson, Katsas, Rao, and Walker. And there are seven active judges appointed by Democratic presidents: Srinivasan, Rogers, Tatel, Garland, Millett, Pillard, and Wilkins.  During the height of the Bush 41 administration, before Judge Thomas went to the Supreme Court, the balance was also 7-4. R.B. Ginsburg, Edwards, Mikvah, and Wald were the only Democratic appointments.

Next, let's consider senior status positions. At present, Judge Edwards is the lone remaining Carter judge in senior status. There are four senior status judges appointed by Presidents Reagan and Bush 41: Silberman, Ginsburg, Sentelle, and Randolph. (During the Trump Administration, Judges Brown and Griffin retired outright, so there are no W. Bush senior status judges) Thus, there are 16 total judges who can be assigned to panels: 8 total Republican-appointed judges (4 active, 4 senior), and 8 total Democratic-appointed judges (7 active, 1 senior). Not all of the senior judges take the same load of cases, but the court is somewhat at equipoise now.

Soon enough, Judge Garland will (almost certainly) be replaced by Judge Brown Jackson. That swap will keep the balance at 7-4, without adding a new senior status judge. But Judge Tatel will join the ranks of senior status judges. Then, there will be a total of 17 total judges who can be assigned to panels, 9 Democratic-appointed, and 8 Republican-appointed. And, if the current exodus of Clinton nominees continues, whenJudge Rogers takes senior status, the breakdown will be 10-8.

In time, the Reagan and Bush 41 senior judges may decide to reduce their caseload further, or retire outright. And Judge Henderson may opt to take senior status. (She became eligible in 2009). Thus, the en banc court would tilt 8-3. Drawing a 2-R panel will become very, very difficult. My colleague Adam White, a historian of the D.C. Circuit, tells me that this shift would be the biggest imbalance since 1969, when there were only two Republican appointed judges: Burger and Danaher, both Eisenhower nominees.

For the foreseeable future, the second highest court in the land will have a significant leftward tilt. Judges Katsas, Rao, and Walker will be a lonely bunch. And, for what it's worth, Judge Walker will be eligible for senior status in 2047. Meanwhile, the highest court in the land will have a significant rightward tilt. The reversal rate will be high. The D.C. Circuit may yet become the new Ninth Circuit.

NEXT: Thursday Open Thread

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  1. I do not differentiate between Scalia and Ginsburg. They were both know nothing, Ivy indoctrinated, America hating bookworms. They were both biased in favor of government. They were both part of the rent seeking lawyer hierarchy. Wasn’t it Scalia who led the jihad against the mandatory sentencing guidelines? These had dropped all crimes and the murder of blacks by 40%. They also dropped lawyer employment, so they had to go. All lawyers are pro-criminal. The criminal generate lawyer jobs. The victims generate nothing for the lawyer profession, and may rot.

    When the arrests begin of the most toxic occupation in the nation, political affiliation will not matter much.

    1. From the other direction, Ginsburg supported abortion. Blacks are 12% of the population, but 40% of aborted babies. This racist feminist, Ginsburg, killed millions of black babies. These babies had hurt no one. She achieved a racial cleansing beyond the wildest genocidal imaginings of the most hate filled member of the Klan.

    2. “Arrests”???

      I thought that the crazies like you intended to pull down the telephone wire and use that to string them up on the telephone poles.

      1. Arrests. One hour trials with their legal utterances as the sole evidence. 10 years at hard labor for their insurrection against the high school language of the constitution. About 25000 are the lawyer hierarchy, and they must be stopped.

  2. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

    /Chief Justice John Roberts

    https://www.foxnews.com/politics/chief-justice-roberts-rebukes-trumps-obama-judge-complaint

    1. I agree with Justice Roberts. They are all know nothing, Ivy indoctrinated, hate America bookworm. There is no difference between them. They all are biased in favor of government. They are all agents of lawyer rent seeking. They are all in insurrection against the constitution. They are all in violation of Article I Section 1, giving all lawmaking power to the Congress, in their judicial reviews.

  3. Why is “I’m a little bitch” a post on volokh now? Oh that’s right because we’re on reason and Eugene thinks this helps them keep clicks from trumpers. Making people stupider and more violent is ok with Eugene if he gets his clicks.

    1. Hi, Jay. Turn to MSNBC. Explain something to the class. Why are all Democrats really ugly? They are all facially challenged.

      The sole exception was my time at a Bernie rally in 2016. Several beautiful women saw me wilting in the summer sun. They offered me bottles of cold water. They refused payment.

      1. Give me a break, Tulsi Gabbard is good enough looking. I wouldn’t want her governing me, (Though in practice she’d probably be less awful than Biden is going to be.) but she’s not hard on your eyes.

        As generalizations go, this one seems a bit subjective.

        1. She’d be a LOT less awful.

        2. Attractive if one likes exploiting the handicapped. I feel sorry for her. Typical Democrat.

          1. Are we talking morally ugly, or cosmetically? I’d gotten the impression you meant the latter.

  4. I’ve been guilty of saying this too, and it certainly is the second most prestigious court in the land, but is the DC Circuit truly the second highest court in the land? Assuming by highest we mean most important, is it actually the second most important court for development of the law for the country?

    I mean it obviously has a great deal of review over the conduct of federal agencies and political disputes, as well as national security cases.

    But if the major decisions are going to get reviewed by SCOTUS anyway, are they truly the second most important? And if they are, was it always the case or do they just happen to be that way now? I think it could be easily persuasively argued that the California Supreme Court under Chief Justice Traynor influenced the law way more than any other lower court ever did.

    And what about their persuasive influence on the law? Do their precedents drive more decisions in other jurisdictions more than other courts do?

    Just something to think about.

    1. All important claims should be moved to Virginia, because of the extreme neo-Marxist ideology of the DC Circuit Court.

    2. But if the major decisions are going to get reviewed by SCOTUS anyway, are they truly the second most important?

      Seems like the issue is Supreme Court bandwidth. They’re not equipped to handle the larger volume of outrageously pro-agency decisions you could expect if there’s not much of a natural dampening effect in the DC Circuit.

      [“Well, that’s even more proof we need to add Supreme Court justices!” Har har.]

      1. Adding Supreme court justices would do nothing to fix the problem, unless you converted the Supreme court into a kind of mini circuit, so that the workload could be handled by smaller groups of justices. And doing that would be really hard to justify, constitutionally.

        The real problem, though, is that the Supreme court is just generally not that inclined to rein in federal power, and generally neither are the lower courts. A natural consequence of everybody staffing them being chosen at the federal level. You don’t end up on the Supreme court, typically, if you’re a fire breathing advocate of enumerated powers doctrine, and hard limits on federal power.

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  6. By “left” you mean “moderate”. There are very few judges who are truly left wing, in the sense most of us use the word.

    1. That’s a very important point. Most of the time, when people on the extreme right complain about “the left”, what they really mean are people who are only marginally less conservative than they are. Biden would not have been electable in most of the Western world because he’s too conservative. Our politics is so far to the right that even a slight moderation is seen as being practically Marxist.

      1. As AOC put it, in Europe she and Biden would be in opposite political parties.

        1. “As AOC put it, in Europe she and Biden would be in opposite political parties.”

          Except that is not true, Biden and her agree at least 90%-95% of the time.

          Biden of 1972, perhaps, not now.

          1. Except that is not true, Biden and her agree at least 90%-95% of the time.

            But that’s only because Biden’s policies are about as leftish as she’s going to get. Shift the center of American politics leftward, to where the European center is, and she and Biden might well find themselves on opposite sides.

            1. Too many counterfactuals there to comment on.

      2. The right-wingers are just disaffected and beleaguered.

        They have lost the culture war. The clingers are dying off, with their stale and ugly thinking. They are relegated to increasingly small and desolate corners of America, and those can’t-keep-up backwaters are emptying. Superstition is waning in America, especially in modern, successful, educated communities. The races are mixing. You can barely* use the ‘n word’ anymore, and if you do it brings a reprimand from the dean that apparently still stings. Conservative-controlled schools are a downscale joke. Most people look down their noses at homeschooling patriots. Homosexuals walk around openly, with very few citizens willing to rebuke them. Mainstream schools teach monkey stuff but don’t have prayers. Black men no longer lower their gaze in the company of White women.

        It’s tough out there for a conservative.

        *’n word’ still welcome at militia gatherings, a Klan rally, a Republican Committee meeting, or the Volokh Conspiracy

        1. “Superstition is waning in America, especially in modern, successful, educated communities.”

          You mean in *Cosmopolitan* communities?

          “For the love spell to work, you must already have a connection with the person you have in mind and instead of changing their perception of you, the love spell is intended to make the connection stronger. Dee adds that you must also have a positive attitude when performing a love spell to keep the vibration and energy high.

          “Each love spell differs in terms of type and intention, but there are two important rules that apply to each one.

          “Firstly, a love spell must be performed on a Friday, because Friday is governed by Venus, the goddess of love. Secondly, a love spell must be performed on a waxing moon phase, which is any phase of the moon between a new moon (the slender crescent shape) and a full moon.”

          https://www.cosmopolitan.com/uk/love-sex/relationships/a35200265/love-spells/

          1. Successful communities like Brooklyn?

            “POLITICS 10/12/2018 08:32 pm ET

            “Modern-Day Witches Plan Ritual To Hex Brett Kavanaugh

            “Witches are gathering in Brooklyn to hex the Supreme Court justice.

            “…Dakota Bracciale, a Brooklyn-based witch who is organizing the Oct. 20 event, said the witches see the hex as a radical act of resistance that continues witchcraft’s long history as a refuge and weapon for the “oppressed, downtrodden and marginalized.”

            ““Witchcraft has been used throughout history as a tool and ally for people on the fringes of society who will not ever really get justice through the powers that be,” Bracciale told HuffPost. “So they have to exact their own justice.””

            https://www.huffpost.com/entry/witches-ritual-hex-brett-kavanaugh_n_5bc0efaae4b0bd9ed559feff

            1. There was a time in this country — not that long ago — when evil was dealt with, and this is evil.

              1. Congratulations on finding the absolute dumbest possible response.

              2. Oh look, Freddy Fascist over here is yearning for a return to a glorious, but completely mythical past, when non-conforming city people were dealt with severely by the righteous.

              3. So “MAGA” was referring to the Salem Witch Trials?

          2. Terrible advice, doesn’t she know that children conceived under the effects of a love spell are incapable of feeling love themselves?

        2. I don’t think you should be allowed to use the n letter. Everyone knows its meaning. I would report you at work for using the n letter.

      3. Yeah, but we don’t live in the rest of the world, and we’re a large enough country it isn’t absurd to use our own standards.

        There are basically TWO “Western worlds”; Europe, and the Americas. It’s just a historical accident that we group them together, they’re fairly different at this point.

        1. No, Canada, Mexico and the other Western Hemisphere democracies are more like Europe than like us. If there are two Western worlds, it’s us on one side, everyone else on the other.

          1. Canada & Mexico are largely still European colonies.

      4. Biden would not have been electable in most of the Western world because he’s too conservative. Our politics is so far to the right that even a slight moderation is seen as being practically Marxist.

        This seems like one of those “if true, so what?” observations. The relevant reference point for political shifts in our country is our country, not others.

        There’s a contingent that thinks we should revert to the mean because it’s the mean — I get that. But that’s an opinion, not an immutable truth.

        1. I wasn’t commenting on what we should do; just making an observation that “the left”, “the right”, “liberal” and “conservative” have all become loaded terms that mean very little, and that mean even less given our status as a total outlier compared to world politics. Using our politics to define terms is like using the residents of Beverly Hills 90210 to define a standard of living: The sample group is so completely unlike everyone else that you should expect skewed results.

      5. den would not have been electable in most of the Western world because he’s too conservative.

        I mean, that’s not even a little bit true.

    2. “By “left” you mean “moderate”.”

      Its a left conceit that a mainstream Democrat is a centrist, but all GOPers are on the “right”.

      Its not true but whatever.

      1. I don’t know about “all” GOPers being on the right, but there seems little doubt that at the moment the extreme right has taken over the party.

        1. If you want to win the Republican nomination for President, you run to the right. This has been true for some time. Even relatively moderate people like McCain and Romney found they had to spew right-wing fire to get the nomination.

          With Democrats, the last time anyone won the nomination by running to the left was 1972. And they’re not eager to repeat that experience.

        2. It’s the “extreme” right only if you’re willing to declare a fairly large fraction of the population “extreme”. The GOP hasn’t been taken over by some fringe movement. Rather, the GOP establishment have long been well to the left of the median Republican voter, and their ability to maintain that disconnect between the party and its base is failing.

          1. How many in the GOP were birthers?

  7. “Since 2007, SCOTUS has released opinions in 993 cases. Of those, it reversed a lower court decision 696 times (70.1 percent) while affirming a lower court decision 289 times (29 percent).”

    https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_Present)

    Wow, that seems too high but the rate seems pretty consistent across all the district courts.

    So we’ll see if this “tilt” Prof. Blackman is concerned about actually changes anything.

    1. Seems about right to me, if not a bit low. After all since the court can’t accept every case appealed they should focus on setting right the wrong decisions, rather than affirming precedents that already correct. I imagine if you dig deeper into the affirmed cases you’ll find a majority of those likely reversed a decision from a different circuit from the case that was actually appealed (eg. 5th Circuit says no, 2nd says yes, SCOTUS takes an appeal from the 2nd and affirms, effectively reversing the 5th Circuit decision) or they could also overturn an older precedent from a past SCOTUS

      Also bear in mind the loser of a case at the circuit level won’t appeal to SCOTUS if they think there is a high likelihood of their loss being affirmed, so cases are self-selecting for reversal to a degree

    2. “Since 2007, SCOTUS has released opinions in 993 cases”

      76 a year. That is a whole 7 opinions per justice. Each has 3 or 4 clerks now because they are so overworked.

      How can they cope with that inhuman workload!

      1. I agree they could do more, but that is not their entire workload. Screening cert. petitions, and dealing with emergent matters (of which there have been many this past year) is also part of the job. I suspect that the clerks do a great deal of the cert. screening and the justices do more of the main opinion writing.

        Not to mention that even if one justice writes the opinion, the others have to be educated enough to agree or disagree with it, and prepare for oral argument. Just because Justice A writes the opinion, that does not mean the others did nothing on the case.

        1. OK, but remember too that software has speeded up the process of drafting and amending opinions, circulating them, etc., and the internet has no doubt made research more efficient, so there should be less “friction” in the whole process.

          1. Yes, and that is why opinions are much longer today. Compare some of today’s opinions to those of even 50 years ago, let alone 100.

            And much of the work cannot be automated. You still have to read the briefs and the records, digest them, and come up with a position. Especially at SCOTUS level, it matters less that there are 100 lower court opinions discussing the issue.

            1. I remember watching an interview with (I think) Anthony Kennedy about legal writing. If I recall correctly, I think he mentioned something about the court taking less cases and taking longer to write longer opinions because the factual basis of some of these cases are much more complex. Things like patent law or anything involving technology.

  8. Elections have consequences. Suck it up.

    Where did I hear that before?

    1. Fraudulent elections have many consequences.

      And one of the 2024 election may well be packing this court…

      1. For the umpeenth time: the election only seems like a fraud to you because you think there is no way that the right to rule of the Real Americans could ever legitimately be taken away from them by liberals and cultural others.

  9. Where did I put that world’s tiniest violin?

  10. David Tatel deserves a little attention in this thread. He and I were partners at Hogan & Hartson, and although we weren’t close friends I knew and respected him. I believe everyone at the firm would say the same thing. Some Democrat Presidents missed a good deal when they didn’t elevate him to the Supreme Court.
    I didn’t appear before the DC Cir. much, but in 2003 I did, and Judge Tatel was on the panel. My firm had taken over the representation after the controversy was well underway, and one of the Judges on the panel asked me during my argument if we had raised a particular issue below. I said, Yes, Your Honor, and my colleague (the associate supporting me at the argument) is getting the record citation.
    At which point, Judge Tatel said, It’s at p. such-and-such of the Record. As I suppose all readers of this blog know, David Tatel is blind — and he found the cite faster than my associate with 20-20 vision. We lost the case, but not for want of a cite.
    By the way, another Hogan & Hartson lawyer argued a case before that panel that day: John Roberts. That may have been his last argument in the DC Cir. before he was appointed to that bench. He won his case.

  11. He fell victim to President George W. Bush defeating Al Gore. By the time President Barack Obama was sworn in, he was too old to be a realistic candidate for a Supreme Court vacancy.

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