On the "Hanging" of a Distinguished Judge's Portrait
U.S. Court of Appeals Judge David S. Tatel and the Nation's Courts
[There is a growing public] perception that courts are functioning as unelected policymakers…Recall Justice [Potter] Stewart’s warning: Nothing, he said, “could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.”
--The Honorable David S. Tatel, 2003 James Madison Lecture at New York University Law School
Lest it be forgotten, there are three co-equal branches of the United States government: executive, legislative, and judicial. In one way or another, all have been under siege in recent years, a particularly fraught era for American democracy.
On September 16, in a ceremonial courtroom at the E. Barrett Prettyman U.S. Courthouse in Washington, a portrait of Judge David S. Tatel was unveiled. He called it a “hanging,” as a step into his ascendency, at age eighty, to senior status on what is considered the nation’s second most important court after the Supreme Court.
David and his wife Edie are very close friends of ours, which is why we were invited to the event, attended by Attorney General Merrick Garland; Supreme Court Justices Elena Kagan, Sonia Sotomayor, and Brett Kavanaugh; and a score or more of other venerable jurists.
One of the best descriptions of Tatel was an article by Ann E. Marimow in The Washington Post on July 8, 2021. Tatel’s decision to take senior status, she wrote, “winds down the career of a leading liberal-leaning voice on the bench that has shaped laws affecting voting rights, the environment, internet regulations and press freedoms.”
A key paragraph in the story said this:
In nearly three decades on the court…Tatel’s lack of eyesight has never defined him. But his blindness – and more recently the attentive German shepherd at his side – is now woven into the culture of the courthouse where Tatel has been at the epicenter of consequential cases affecting major aspects of American life. The latest formal portrait of the court’s black-robed judges features “Vixen” in the front row.
Vixen is Tatel’s guide dog, from all accounts a worthy collaborator.
David’s blindness is the result of retinitis pigmentosa, a condition that leads to loss of sight, in Tatel’s case in his thirties. One of the many strands in our friendship is the string tether that we used as he and I ran the streets of Maryland and even a Marine Corps Marathon together.
David and Edie have been married for fifty-seven years. They have four children and eight grandchildren. David has skied with a guide, strides the countryside (now accompanied by Vixen), and reads copiously, aided by technology that recites words to him at speeds the rest of us would not understand.
At the ceremony, many of Tatel’s 116 devoted law clerks were in attendance, as well as a representation of the thirty-nine “readers” on whom he has relied over the years to support him in the preparation of his opinions.
After years of prodding by, among others, me, Tatel has embarked on a memoir of his life and work. It is not the story of a blind judge. It is the story of one of the country’s significant legal figures, who happens to be blind. The book will be published by Little, Brown and Company.
The timing of the portrait unveiling was especially relevant in the current perception of a crisis in our court system. The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which did away with federal protections for abortion, is only the most recent decision that seems to represent the country’s deep ideological and political divide rather than respect for precedents about the rights of individuals.
This growing divide was the subject of Tatel’s Madison Lecture in 2003 and the theme of an important essay by Heather Cox Richardson in her brilliant Substack newsletter, Letters from an American, on September 5, in which she wrote, “The neutrality of the law is central to democracy. But it is increasingly under question as Republican-appointed judges make decisions that disregard settled law.” To call this a crisis is not an exaggeration.
In his closing remarks at the “hanging” ceremony, Tatel chose to quote the words of Robert F. Kennedy that inspired him as a young lawyer:
Let no one be discouraged by the belief that there is nothing one man or woman can do against the enormous array of the world’s ills, against misery and ignorance, injustice, and violence. Few will have the greatness to bend history itself. But each of us can work to change a small portion of events, and in the total of all these acts will be written the history this generation.
That will be the judicial legacy, among other life achievements, of the Honorable David S. Tatel.
Portrait by Jon Friedman