There were no opinions out of the D.C. Circuit last week–only an order granting a motion for summary affirmance in False Claims Act appeal. While there are interesting Article II questions surrounding qui tam actions, the order simply applies settled law that pro se litigants cannot pursue claims on behalf of the United States.

For want of an opinion to cover, I’ll use this post to remember Professor Henry Monaghan, who passed away on January 1 at the age of 90. I never had the privilege of meeting Professor Monaghan in person, but even so, I am very lucky to claim him as a mentor. A couple of years ago, a friend shared a draft of my “job talk” paper with him as I was preparing to go on the academic market. He, for no reason other than pure generosity, took me under his wing. (The draft he read “did not succeed,” he told me with characteristic candor. Much thanks to him, the paper later did.)

I will forever marvel at my good fortune that I was able to spend time discussing life and the law with him in his final years. He was a genius who made formative contributions in many areas of the law, including administrative law.  His influence would be far underestimated by a simple citation count in, say, the D.C. Circuit. As Judge Janice Rogers Brown pointed out, Monaghan’s thesis in his seminal article Marbury and the Administrative State (1983), “reappeared, without citation, as the core of Justice Stevens’s new approach to statutory interpretation in [Chevron]” (quoting Gerald Neuman). (For a fun post on that article on this blog, see here.) 

He had an important biographical connection to the D.C. Circuit, too. In 1987, he testified before the Senate Judiciary Committee in support of then-Judge Bork’s nomination to the Supreme Court. Here is an excerpt of his testimony:

If Judge Bork is not confirmed, the administration will select another moderate conservative. I hope you will not think me presumptuous to say that the second nomination will pass. To my mind, therefore, what is at stake is not the immediate composition of the Supreme Court. What is at stake here is something quite different. The impact of a process of government on a man’s reputation. I want to insist that it is simply wrong to depict Judge Bork as a radical or to intimate that he lacks integrity. And it is wrong to say that his confirmation would constitute a serious threat to the liberties of the American citizen. It is deeply upsetting to me to see a man with so distinguished a public career made the object of such an attack. If Judge Bork is not confirmed, the course of history will not change, but we shall have witnessed a small and, for me, sad episode in the Senate’s history. 

With the benefit of hindsight, I don’t agree that the Senate’s rejection of Judge Bork’s nomination was inconsequential in the way Monaghan predicted it would be.  But his message could not have been more important. 

He stressed the same message to me practically every time we spoke. Justice Thomas is my former boss, and, as Monaghan knew, my hero. Monaghan disagreed fervently with the Justice’s approach to judging. But he could not abide the endless, baseless attacks on Justice Thomas’s integrity and fumed about them. 

To quote yet another great American, the world may “little note, nor long remember” all the legal ideas we love to talk and write and argue about. Monaghan knew that Robert Bork and Clarence Thomas and so many others who find their integrity questioned in the pursuit of some legal idea are human beings, our neighbors, and creatures of God. 

Professor Monaghan was a great man for legal ideas. He was a better man for human beings. May he rest in peace.