Dear Judge Walker,
Welcome to the D.C. Circuit.
As you begin your tenure on the country’s second-most powerful court, there are a few things you should know.
As former clerks to the D.C. Circuit — you for then Judge Kavanaugh and I for Judge Sentelle — we remember the court for its collegiality, integrity, and fairness. But times have changed, and unfortunately, these days the court is perhaps better known for its politicization and bitter infighting.
In recent years you may have seen occasional screeds and shaky videos from Senator Sheldon Whitehouse about the politicization of the Supreme Court, and his senseless rants about “Roberts Five” decisions. Ha. Has Senator Whitehouse been paying attention to the D.C. Circuit the last several years? Because without a doubt, the new D.C. Circuit is *the* most politicized court in the nation.
For example, take the recent retirement of Judge Griffith, the judge you are replacing. It used to be the case that after 15 years of service on the federal bench, a judge could retire in peace, save for some light ribbing and roasting at a farewell party thrown by the judge’s colleagues.
Not anymore. When Judge Griffith decided to retire, the left-wing dark money group Demand Justice accused the judge of stepping down in exchange for a bribe arranged by Senate majority leader Mitch McConnell. As even NPR reported, this was a baseless smear — Judge Griffith was retiring to care for his wife, who had been diagnosed with a debilitating chronic illness several years earlier.
Nonetheless, Chief Judge Srinivasan lent credibility to Demand Justice’s ridiculous and unprecedented attack by asking the Supreme Court to launch an investigation into the circumstances surrounding Judge Griffith’s retirement.
Chief Justice Roberts swiftly rejected this request. As the Chief Justice explained, Demand Justice’s accusation was nothing more than an unverified correspondence. The rules for judicial-misconduct proceedings required Chief Judge Srinivasan to determine if there was any reasonable basis for investigating the accusation before transferring it to the Supreme Court. Srinivasan didn’t bother to do that inquiry, and so Chief Justice Roberts rightly threw out his irregular request. But the damage was done to the reputation of a good man who did not need to add to his burdens.
Or consider the D.C. Circuit’s practice of going en banc, that is, having the full court rehear a case initially decided by a three-judge panel. Before 2017, the full court had voted to rehear cases only seven times in the preceding six years. By contrast, the court has gone en banc three times this year alone, and they may not be done yet.
These cases that the D.C. Circuit has taken en banc of late have not been technical fights over arcane federal regulations. No, the typical practice has been that the court’s progressive majority has voted to take cases en banc when a three-judge panel has had the audacity to rule in favor of the Trump administration. That is what happened in the case against General Michael Flynn and when the House Democrats sought to conscript the federal judiciary in their subpoena fight with former White House counsel Don McGahn. Just this week the Court, sitting en banc, sent General Flynn’s case back to Judge Sullivan for further proceedings, even though the Justice Department, the defense, and a panel of appellate judges agreed that the case should no longer be prosecuted.
It also happened in a case heard by your former boss. On October 20, 2017, a panel of the D.C. Circuit including then Judge Kavanaugh held in an unpublished order that the federal government was not required to immediately perform an abortion at the request of an illegal immigrant minor in the government’s custody. The order allowed the government to release the 17-year-old minor to a sponsor (usually a family member, friend, or acquaintance) in the United States, so long as she was released “expeditiously.” This would have allowed the immigrant to have an abortion, if she so chose, within a week of the panel’s decision.
Not good enough for the D.C. Circuit. Just four days later, and without oral argument, the en banc Court held that illegal immigrant minors have a constitutional right to obtain an abortion on demand. This was unprecedented, both because nothing in the Constitution supports such a right, and because the Court seldom, if ever, goes en banc to reconsider an unpublished decision.
And if these examples of the court’s worrying new direction aren’t enough, consider the selective leaks to the press of the judges’ internal correspondence. These leaks, featuring cleverly excerpted emails and out-of-context quotes, appear designed to force conservative judges to recuse themselves from cases about particularly contentious issues.
As you begin your tenure, you should expect a more political, more fractious court, where progressive policy ideas rather than the text of the law often drive outcomes. That means that you should be careful in your communications with colleagues, and that a once-robust forum for the internal and confidential exchange of ideas so crucial to effective decision-making no longer exists.
And it means that you — and the rest of us — should expect more of the same if November brings a Biden administration committed to resuming the practice of putting politics above the law with its selection of judges. If that were to happen, the new D.C. Circuit will become the model for every other federal appellate court across the country.