'Prodigious': Judge David Tatel leaves mark on influential federal appeals court

Judge David Tatel, center, with Judge Sri Srinivasan on December 18, 2019.
John Fritze

WASHINGTON – Ask a colleague about Judge David Tatel and the conversation inevitably turns to a scene in which someone else is furiously flipping through papers.

It might be a courtroom story about a lawyer riffling through a legal brief in a panicked search for an answer to a question from the bench. It might be a fellow judge, opening a binder during a private meeting to parse the wording of an obscure federal statute

The particulars don't matter because the story always ends the same: The 79-year-old Tatel pipes up before anyone else can find the right page. As others look up, Tatel begins to recite the statute word for word.

Whoever is telling the anecdote often doesn’t mention that Tatel is the only person in the story who can’t see the papers flying around him. It's impressive enough without knowing the veteran appeals court judge with the words of the statute at his command is blind. 

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"The work Judge Tatel puts into preparing for oral argument is prodigious," said Merrick Garland, who served alongside Tatel on the U.S. Court of Appeals for the District of Columbia Circuit before President Joe Biden tapped him to be attorney general. "Before anyone else can find the relevant page, he recites the key passage verbatim, followed by a question that goes directly to the heart of the issue."

Nominated by President Bill Clinton in 1994 to fill the appeals court seat left vacant when Ruth Bader Ginsburg ascended to the Supreme Court, Tatel announced this year he intends to take senior status, a form of semi-retirement for federal judges. Once Biden names his successor, it will mean a lighter caseload for an influential member of the second-most important federal court in the United States.

The White House announced last week that Biden intends to nominate Judge J. Michelle Childs, a federal district court judge in South Carolina, for Tatel's seat. 

In nearly three decades on the court, Tatel has written some 700 opinions on environmental issues, Guantanamo Bay detainees, internet regulations and a long list of other thorny controversies.

He joined a unanimous court in 2005 that ruled against former New York Times reporter Judith Miller when she refused to testify before a grand jury about a confidential source. He wrote for a 2-1 panel of judges in 2012 upholding a key provision of the Voting Rights Act, a decision eventually overturned by the Supreme Court. In 2005, he dissented in a groundbreaking climate case, asserting the Environmental Protection Agency had the authority to regulate carbon dioxide and other greenhouse gasses. 

When the Supreme Court ruled in that case two years later, it overturned the D.C. Circuit, relying heavily on Tatel's interpretation of the law.

Tatel wrote for a 2-1 majority upholding a congressional subpoena for President Donald Trump's tax returns in 2019. The appeals court detected "no inherent constitutional flaw in laws requiring presidents to publicly disclose certain financial information," he wrote. "And that is enough."

Because it reviews many decisions made by federal agencies, the D.C. Circuit often juggles high-profile and politically sensitive cases at a time when the nation is deeply divided. Tatel nevertheless draws high marks from both ends of the political spectrum. 

"He’s won the respect of liberals and conservatives," said Jeffrey Rosen, president of the National Constitution Center. "He's both a judge's judge and a visionary." 

The E. Barrett Prettyman U.S. Courthouse in Washington, D.C.

'Clarity of his thinking'

A Washington-area native, Tatel arrived at the appeals court in the middle of Clinton's first term with an extensive background in civil rights and education law.

Soon after graduating from the University of Chicago law school in 1966, Tatel became the founding executive director of the Chicago Lawyers’ Committee for Civil Rights Under Law. He went on to lead the civil rights office of what was then the Department of Health, Education and Welfare during President Jimmy Carter’s administration.

His government and private practice work thrust Tatel into a years long push to desegregate schools in several major American cities, including Chicago and St. Louis. The effort won accolades from civil rights leaders of the time, including one prominent attorney who once described Tatel as “the conscience and the spearhead of integration." 

When Clinton nominated Tatel to the D.C. Circuit in 1994, the White House described him as "one of the nation's leading education and civil rights lawyers."

Colleagues and lawyers who have argued before Tatel describe him as extremely versed in the minutiae of their cases – a reliably challenging, but polite questioner. Some describe his opinions as sparse, matter-of-fact. He avoids passive voice. He abhors footnotes, the small-type explanations – and occasional sniping – ubiquitous in legal writing today.

Tatel never finishes an opinion without first working through six or seven drafts – and sometimes dozens more. It’s not only about landing on the right legal interpretation, he said. It’s also about making sure anyone who reads a ruling can follow the logic and the law. 

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit, is pictured before the start of a ceremony at the federal courthouse in Washington, Thursday, May 1, 2008.

"I want the opinions to be clear and understandable to the parties and to the public, including skeptics," Tatel said. "The integrity of a judicial opinion turns largely on how well it's explained."

Last year, Tatel delved into the intricacies of capital punishment protocols in a dispute that arose when the Trump administration sought to restart federal executions after a 17-year hiatus. 

Four death row inmates challenged the administration's plan, arguing it conflicted with the protocols used by the states where the sentences would be carried out. The question was whether the Federal Death Penalty Act of 1994 required federal officials to follow those informal state protocols, or only state laws and formal regulations that dictate execution procedures.

State law, for instance, will spell out the general manner in which executions will be carried out within the state, such as via lethal injection. But a state's more informal protocols might stipulate the exact drugs and dosage that must be used.  

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Two Trump-nominated judges said the administration was free to use its own protocol. Tatel, in a 13-page dissent, said Congress wrote the federal law at issue to ensure that federal executions rely on the same procedures states use. That's important, Tatel asserted, because those procedures are intended to make sure the executions are humane and constitutionally sound.   

"Context matters, and here context requires a different result," Tatel wrote. Allowing the federal government to bypass state execution protocols would defeat the federal law's purpose, he added: "To make federal executions more humane by ensuring that federal prisoners are executed in the same manner as states execute their own."

Judge Robert Wilkins, who has served on the D.C. Circuit since 2014, said Tatel's precision and approach to the law has had an enormous impact on the court.

"The clarity of his thinking and reasoning has been very influential," Wilkins said. "His writing is pretty amazing and it’s influenced me and my writing style."

Sweating the details

Growing up in suburban Maryland, Tatel loved to play baseball but struggled with his vision at an early age, taking extra care in the outfield with fly balls. He was diagnosed with retinitis pigmentosa in 1957, a rare genetic disorder – poorly understood at the time – that led to progressive vision loss. 

By the time he reached his 30s, Tatel had married his wife Edie, had three children with a fourth on the way and had returned to private practice. 

He had also lost his sight.

David Tatel as an attorney in Washington, D.C.

Tatel, who has run three marathons, has long employed a full-time reader, including a number of students who went on to law school. But these days he does much of his reading on his own, relying on a Braille computer and a smartphone that allow him to covert documents to speech. That system allows him to listen to audio – to read – at what colleagues say is at least two to three times the speed it might take for anyone else to get through a text.  

“He’s going really fast,” said Goodwin Liu, a California Supreme Court justice who clerked for Tatel in the late 1990s. While Tatel can’t see the written word, he makes up for it in organization and the ability to recall the smallest details, like the placement of a comma in a dense legal document, Liu and others said.  

“He retains information with tremendous fidelity,” Liu said. 

Liu doesn’t dwell on Tatel’s blindness: It influenced their relationship but didn’t define it. 

Liu recalled that, back before Tatel began walking with his guide dog, Vixen, he and his fellow clerks would take turns walking the judge from a subway stop to the courthouse. Tatel would use those 10-minute walks to press his young employees about what was happening in their lives. It was, in other words, a chance to make a personal connection with this aides. And Tatel took it.

"He enjoyed getting to know his clerks personally," Liu said. "His writing – some people would call it spare, even austere in some ways. But the man himself? I think most people would find him to be warm and approachable." 

Playing it straight 

A clerk once asked retired judge Thomas Griffith to identify the model conservative on the D.C. Circuit. Griffith, who was nominated by President George W. Bush in 2005, named Tatel.

"He didn’t roll his eyes," Griffith said of his former clerk, "but he wanted to." 

What Griffith meant was that Tatel, despite being nominated by a Democratic president and bringing a progressive background to the job, didn't let politics enter into his work. 

"He doesn’t prejudge a case. He listens to the arguments. He follows the law," said Griffith, who served on the appeals court for 15 years. In Griffth’s telling, the clerk revisited the discussion months later and admitted that his boss had a point.  

He "plays it straight" is a phrase people often use when they talk about Tatel.

Judge Ketanji Brown Jackson on April 28, 2021.

There are currently seven judges on the D.C. Circuit appointed by Democratic presidents compared with four nominated by Republicans. Earlier this year, Biden named Judge Ketanji Brown Jackson to fill Garland’s seat. 

In his February letter notifying Biden of his intention to take senior status, Tatel was characteristically succinct in explaining his reasoning. It was, he said, time to "make room for a new generation" of judges.     

Childs has served as a federal judge in South Carolina since 2010. She had support from South Carolina Rep. Jim Clyburn, the third-highest ranked Democrat in the House, for a seat on the Supreme Court if one became available, the New York Times reported this year. But the vacancy didn't materialize because Associate Justice Stephen Breyer stayed at the high court despite calls on the left for him to retire this summer.

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"We're in such cynical times and polarized times," Griffith said.

"Whenever we find people like David Tatel – dedicated public servants who act with civility and kindness – we need to hold them up to show what we can be."