The Missing Supreme Court Short Lister?

Old DC Circuit couthouse - a path to the Supreme Court?
Old DC CIrcuit courthouse

While people are still digesting the news that President Obama has nominated Judge Merrick Garland to fill the Supreme Court vacancy, I’d like to talk a bit about one person who never made it onto Obama’s short list but should have:  Judge David Tatel, a colleague of Garland’s on the U.S. Court of Appeals for the D.C. Circuit.

Like Garland, President Bill Clinton named Tatel to his seat on the D.C. Circuit.  Also like Garland, Tatel was rumored to be on the shortlist of both John Kerry and Al Gore when they were running for president.  Tatel, however, has a different background than Garland.  Before he became a judge, Garland was most famous for his work as a prosecutor.  Tatel, by contrast, was known for his work on civil rights.

During the Carter administration, Tatel was the director of the Office of Civil Rights in what was then called the U.S. Department of Health, Education, and Welfare (HEW).  Take particular note of the education part of that department name (the department has now split into the Department of Health and Human Services and the Department of Education).  As the battles over school segregation still raged in the 1970s and as the federal government began to implement Title IX, Tatel was in the thick of the fight.  Before Tatel came to HEW, he also had two stints leading the Chicago Lawyer’s Committee for Human Rights.

Tatel also has a solid record on the D.C. Circuit, somewhat to the left of Garland.  And, one more fact about Tatel:  He is blind.

So why did he fall off the short list?  One simple reason:  He turned 74 yesterday. (Happy birthday, Judge Tatel!)  Nevertheless, I think it was a mistake for Obama not to consider him.  To Republicans, Obama could have said:  “Confirm him, and you may well have another vacancy during the next president’s term.  Continue with your current plan of obstructionism and not only will you be denying a highly-qualified judge a seat on the Court, you will be refusing even to hold a hearing on the first Supreme Court nominee with a disability.”

To liberals, Obama could have said:  “While this isn’t a long-term appointment to the Supreme Court, we need another strong voice for civil rights on the Court, and we need it now.”

To the country, Obama could have said:  “Judge Tatel represents the spirit of America.  A fine judge.  Someone who has given years of service to his country and someone who shows that in our nation, a disability will not stop you from achieving the most you can achieve.”

What might have been …

Leave a Reply

Your email address will not be published. Required fields are marked *