D.C. Circuit Review – Reviewed: A Small Thought About the Chief Judge of the D.C. Circuit

by Aaron Nielson — Friday, May 12, 2017@Aaron_L_Nielson

I did not think the President’s decision to fire James Comey as FBI Director would have any connection with the D.C. Circuit (well, beyond the fact that Judge Silberman was quoted in Deputy Attorney General Rod Rosenstein’s letter). Yet just a few days later, I see that Chief Judge Garland is being pitched as a replacement. When it comes to national news, never count out the possibility that the D.C. Circuit will make an appearance!

I don’t have much to add to the conversation; it seems like everyone else has said all there is to say (and more) on the subject. Obviously, it is unlikely that Chief Judge Garland will end up at the FBI.

Even so, all the chit-chat out there prompts a small thought. The idea that Chief Judge Garland would never leave the D.C. Circuit during President Trump’s tenure because it would mean he may be replaced by someone with different views strikes me as too quick. After all, the Chief Judge of the D.C. Circuit often takes senior status even when it means that his or her seat may go to someone with a different judicial philosophy.

Consider Chief Judge Sentelle. He was appointed by President Reagan and took senior status in 2013 — when his term as chief judge ended. Before Sentelle was Chief Judge Ginsburg. He also was appointed by President Reagan. He took senior status in 2011. Before Ginsburg was Chief Judge Edwards. He was appointed by President Carter and took senior status in 2005. His seat was eventually eliminated — but he did not know that would happen when he took senior status. Before Edwards was Chief Judge Mikva. Mikva was appointed by President Carter and replaced by President Clinton. Mikva’s situation, however, was extraordinary: He left the Court altogether to become White House Counsel. Before Mikva was Chief Judge Wald. She was appointed by President Carter and took senior status in 1999 when the Republicans controlled the Senate — so she could not know who would end up replacing her. Her seat was eventually filled by Judge Griffith. Before Wald was Chief Judge Robinson. He was appointed by President Johnson and took senior status in 1989. Before Robinson was Chief Judge McGowan. He was appointed by President Kennedy and took senior status in 1981. And before McGowan was Chief Judge Wright. Wright was appointed by President Kennedy and took senior status in 1986. (All of this data comes from Wikipedia; I think it is correct but I wouldn’t bet my life on it.)

Each of these Chief Judges, moreover, continued to hear cases after taking senior status (except Mikva). The lesson? I do not have a grand theory, but I can say this: Life is complicated and much is not partisan.*

The D.C. Circuit decided three cases this week. Each was unanimous — as most cases are.

In AquAlliance v. U.S. Bureau of Reclamation, Judge Millett (joined by Judges Brown and Wilkins) addressed the intersection of water and FOIA, with a touch a poetry thrown in for good measure:

There may be “water, water, everywhere,” but nary a water well to be found. AquAlliance wants to know where the wells are, and it filed a Freedom of Information Act (“FOIA”) request to find out. But the federal government declined to say, invoking FOIA Exemption 9, which permits the withholding of “geological and geophysical information * * * concerning wells,” including “maps.” 5 U.S.C. § 552(b)(9). The question before us is whether Exemption 9 permits the government to withhold information and maps disclosing the locations and depth of certain water wells. We hold that Exemption 9 means what it says and thus the government’s withholding was permissible.

In United States v. Crews, Judge Pillard (joined by Chief Judge Garland and Judge Kavanaugh) resolved a fact-heavy criminal appeal:

Crews now claims that two errors in the district court’s evidentiary rulings require us to vacate his conviction. First, Crews argues the district court erred by denying his motion for a mistrial after Joseph Brennan, an emergency room nurse, testified that a gravely injured alleged co-conspirator arrived at the hospital with “brain matter that was exposed.” But the district court remedied what little prejudice Brennan’s testimony might have produced by giving a curative instruction to the jury. Second, Crews contends that the district court erred by striking the entire testimony of his sole witness, Vakeema Ensley, who, after testifying in Crews’s support, asserted her constitutional privilege against self-incrimination near the outset of cross examination by the prosecution. Crews asserts that the district court should have struck only the testimony that related to the specific line of questioning corresponding to the cross-examination questions as to which Ensley invoked the privilege. But the record shows that Ensley asserted a blanket privilege against any further cross examination, and that Crews made no contemporaneous objection to the evidentiary decisions the district court made in response. The district court did not plainly err by striking the entirety of her testimony. Detecting no reversible error on either point, we affirm.

And finally, in Kahl v. Bureau of National Affairs, Judge Kavanaugh (joined by Judges Rogers and Wilkins) issued an important First Amendment opinion. He opened his opinion this way:

The First Amendment guarantees freedom of speech and freedom of the press. Costly and time-consuming defamation litigation can threaten those essential freedoms. To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.

It seems that the plaintiff “was convicted in federal court of murdering two U.S. Marshals. Kahl was sentenced to life in prison.” Eventually, “the Bureau of National Affairs (known as BNA)” mentioned “the sentencing judge’s statement that Kahl lacked contrition and believed that the murders were justified by his religious and philosophical beliefs.” But in reality, “those statements had been made at the sentencing hearing by the prosecutor, not by the judge.” Was that defamation? No, says the Court: “falsity alone does not equate to actual malice. ”

And that’s the week.

* To be clear, I’m not arguing that hoping to be replaced by a like-minded jurist is inappropriate. All I am saying is that the last forty years of the D.C. Circuit counsel against simplistic assumptions.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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