[blindLaw] Biden can nominate two judges to serve on the influential D.C. Circuit - Washington Post - February 12, 2021
Noel.Nightingale at ed.gov
Fri Feb 12 18:13:03 UTC 2021
Biden can nominate two judges to serve on the influential D.C. Circuit
By Ann E. Marimow
February 12, 2021
President Biden will have two openings to fill on the influential federal appeals court in Washington after Judge David S. Tatel announced plans to step back from active service.
Tatel has notified the president he will retire from active service as soon as his successor is confirmed in the Senate.
“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 late Thursday in a message to his former law clerks. “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.”
The announcement from Tatel, a Clinton nominee who took the seat vacated by the elevation of Justice Ruth Bader Ginsburg, is one of what is expected to be a wave of retirements of judges nationwide. More than one-third of judges serving on the federal appeals courts are eligible because of their age and years of service to take “senior status.”
The openings will allow Biden to make his mark on the judiciary after President Donald Trump installed judges at a record pace. In addition to Tatel, Biden will be in position to pick the replacement for Judge Merrick Garland, whose nomination to serve as attorney general is pending before the Senate.
Tatel, a former civil rights advocate who has been blind for most of his adult life, is considered one of the more liberal judges on the D.C. Circuit. In nearly three decades on the court, Tatel has written on a broad range of subjects, including the death penalty, presidential power and the First Amendment.
Tatel, 78, dissented last spring when the court sided with the Trump administration’s plans to resume federal executions after a nearly two-decade hiatus. For decades, he noted, almost all federal executions were carried out by state officials who executed federal prisoners in the same “manner” as they executed state prisoners.
To rule otherwise, Tatel wrote, would defeat the purpose of the law, which he wrote was “to make federal executions more humane by ensuring that federal prisoners are executed in the same manner as states execute their own.”
Tatel was outnumbered on the panel by two judges nominated to the D.C. Circuit by Trump, and the Supreme Court eventually cleared the way for the administration to execute more people in a single year than had been subject to the federal death penalty in decades.
In one of the battles over congressional access to Trump’s tax and financial records, Tatel upheld lawmakers’ broad investigative powers and the validity of a subpoena from a House committee.
“Whether current financial disclosure laws are successfully eliciting the right information from the sitting President, occupant of the highest elected office in the land, is undoubtedly ‘a matter of concern to the United States,’ ” Tatel wrote, citing a past court opinion. He added, “It is not at all suspicious that the Committee would focus an investigation into presidential financial disclosures on the accuracy and sufficiency of the sitting President’s filings.”
When the case reached the Supreme Court, the justices also rejected Trump’s claims of immunity from congressional investigators. But the high court sent the case back for additional review and the case is still pending, now in District Court.
In June, Tatel wrote the opinion upholding an order restoring the press pass of a White House correspondent after Trump’s press secretary imposed what the judge wrote was an “unprecedented sanction.”
“A thirty-day forced hiatus inflicts considerably more than a reputational injury on a journalist, for whom sustained access is essential currency,” wrote Tatel, who was joined by Chief Judge Sri Srinivasan and Judge Cornelia T.L. Pillard.
Before becoming a judge, Tatel directed the Office of Civil Rights in the then-Department of Health, Education and Welfare in the 1970s and served as executive director of the Lawyers’ Committee for Civil Rights Under Law.
Tatel said he will not leave until his successor is named. The Biden administration has said it intends to move swiftly to fill openings and intends to nominate judges from diverse personal and professional backgrounds, including civil rights attorneys and public defenders.
In closing his note to former clerks, Tatel said, “I feel good and strong, and I look forward to many years of service as a senior judge — and to more time with my wonderful family.”
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