Author Chats
Former Judge David Tatel Writes About His Undiminished Vision of Justice
June 05, 2024
David S. Tatel’s upcoming memoir, Vision: A Memoir of Blindness and Justice, is a glimpse into the 1960s and
’70s civil rights turbulence, a rumination on judicial philosophy, and a candid reflection on the challenges of living with a disability. Tatel has a genetic condition, retinitis pigmentosa, that resulted in the deterioration and eventual loss of his sight, though his view of justice and the judiciary remain undiminished.
Tatel retired from the bench earlier this year, having spent 30 years on the U.S. Court of Appeals for the District of Columbia Circuit, taking over the seat vacated by Ruth Bader Ginsburg in 1993. Previously he was the founding director of the Chicago Lawyers’ Committee for Civil Rights Under Law, director of the national Lawyers’ Committee for Civil Rights Under Law, and director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare during the Carter administration. Since retirement, Tatel has returned to private practice at Hogan Lovells, which he first joined in 1974 when it was Hogan & Hartson.
The D.C. Bar recently spoke with Tatel about his upcoming book, his judicial philosophy, and his guide dog, Vixen.
Why did you title your memoir Vision?
The book has two themes — blindness and justice — and the word “vision” covers them both. I quoted the definition of vision from Webster’s at the beginning of the book. It’s interesting to me that there are two definitions. One is the act or power of seeing, but the other one is a thought, concept, or object formed by the imagination. I can’t “see” as described by the first definition, but I have vision because seeing occurs in the brain, and my vision comes from signals and information I get, just as you get; they just come to me differently … The other side, of course, is my vision about the law. My whole legal career and judicial career have turned on a particular vision that I have of our judicial system and how courts are supposed to operate.
This is your first book. Did you ever consider writing one previously?
I did, yes. One of the chapters of this book is called “Too Beautiful to Burn.” It’s about a case I worked on with the Lawyers’ Committee for Civil Rights Under Law in Mississippi, and it involved the NAACP’s boycotts in the ’60s and ’70s of white merchants throughout the state who wouldn’t hire Black employees … The white merchants responded by filing a state antitrust action.
The core of the case [I worked on] was that the white merchants, funded by the White Citizens’ Council, which is basically the country club version of the Klan, won in state court a million-dollar judgment against the NAACP and the boycotters. The NAACP didn’t have a million dollars, and it was very clear from their financial records that paying it would have bankrupted the nation’s oldest civil rights organization and many of the individuals involved. The problem for the NAACP is that they couldn’t appeal under Mississippi law without posting a bond equal to 125 percent of the judgment. They couldn’t come up with the money.
The day the judgment was due, I filed a lawsuit in the federal court in Mississippi, arguing that requiring the NAACP to file this bond interfered with its First Amendment rights, namely the boycott, and its constitutional right to access the courts, and we won. The district judge entered an order allowing the NAACP to appeal with the Mississippi Supreme Court without posting the bond.
The NAACP lost in the Mississippi Supreme Court, as we expected, but … in a case called NAACP v. Claiborne Hardware Co., the NAACP won in a ringing endorsement by the Supreme Court of the United States. That case is important to all boycotts because it holds clearly that, even though a boycott may cause economic damage to its targets, the actions of the boycotters are protected by the First Amendment.
I had a plan to move [to Mississippi] for a year and to interview the boycotters and others involved. I thought it would make a good story about the civil rights movement in an unusual little town. It would have been called Too Beautiful to Burn, because during the Civil War, after Grant came down the Mississippi and captured Vicksburg and headed toward Jackson, his army came through this town called Port Gibson, which is on a bluff overlooking the Mississippi River. The story is that Grant ordered his troops to leave the town alone. He said, ‘this town is too beautiful to burn,’ and that phrase still appears today on the badges of firemen and on the signs going into town.
I thought, I have a book and a great title. Well, I wrote a proposal, and no one was interested. So, I never did write the book but still had a great title, and I used it as the title of Chapter 6 [of Vision].
How did you develop your judicial philosophy?
I try to answer that question in my book, in a chapter titled “The Art of Judging.” Before my appointment, I had been a practicing lawyer for many years, litigating in the courts, but I hadn’t been a judge. Here’s a relevant excerpt:
I needed a judicial North Star, a set of principles to guide my decision-making and to help separate my judicial obligation to faithfully apply the law from my personal views about right and wrong.
I looked for those principles first in judicial biographies, which I devoured while I prepared for my Senate confirmation hearing. The two that stuck with me were my friend Gerry Gunther’s lovely book about Learned Hand, and John C. Jeffries’s biography of Justice Lewis F. Powell Jr. Learned Hand (yes, that was his real name) was the greatest appeals court judge never to reach the Supreme Court. Despite his decades of experience and peerless intellect, the hallmark of Hand’s approach was self-skepticism.…
I was drawn to Powell’s story because, like me, he’d gone directly from private practice to the bench. Also like me, he found his first year — the pace, the deluge of new issues, the isolation — especially challenging.…
Hand and Powell were the kind of jurists I wanted to be. They played it straight. They strove to identify, and then ignore, their own predispositions. Above all, they believed in judicial restraint. As I soon learned, however, it was one thing to believe in judicial restraint and read biographies of judges who had tried to live up to that ideal, and quite another to put them into action.
So, that lays out how I got started, and in the following chapters I hope to be able to explain to my readers how I put those principles into action, and how those principles affect what I think about today’s Supreme Court.
Since retiring from the bench, you have returned to Hogan. What drew you back to the firm?
I was the director of the National Lawyers’ Committee for Civil Rights Under Law from 1972 to 1974, and I loved the job. But one day I was working on a case with the partner from what was then Hogan & Hartson, who was running their new pro bono department. They then called it the Community Services Department. This was John Ferren, who had previously taught at Harvard, and who the firm had brought in to start their pro bono department in 1970.
John and I got to be good friends. We were working on a case together, an employment discrimination case from Florida, and Hogan had agreed to take it on for the Lawyers’ Committee. One day he said to me that Hogan wanted him to become the managing partner of the firm, and [he] said he would on the condition that he be allowed to bring in someone to take over his program, and would I like that job?
Well, that was my dream job … to be at a major law firm doing pro bono work. So, in 1974 I came to the firm, first as an associate and then as a partner running the program. The Port Gibson case is one that I handled while I was at Hogan. I left after a little over two years to join the Carter administration, where I ran the Office for Civil Rights at the U.S. Department of Health, Education, and Welfare. Then, I returned to the firm in 1979 and stayed there until my appointment in 1994, and during that time I founded and ran the firm’s education practice.
So, I was at the firm for a total of 25 years, and Hogan has been a wonderful home for me … It was at Hogan, in those early years, where I got a firsthand look at how really good litigators function both at a trial court and at the appellate level. I learned an enormous amount during that time.
During my time on the court, I kept up my friendship with many of my former partners, and I continued to consider Hogan to be one of my two homes in the law. And when I finally decided after all those years to take senior status and eventually retire, I couldn’t think of anything I’d rather do than return to Hogan. It was my home. It just felt like the right place for me to return to.
Vixen, your guide dog, shares the cover of your memoir. Tell me about your relationship with her.
My relationship with Vixen started, unfortunately, later in my life than I now wish it had. I started using a cane when I returned to Hogan in 1979, and I got pretty good with my cane [but] it didn’t give me all the independence I wanted. There was too much time worrying about whether I could find someone to walk across a particular street with me or get to the Metro. The city was getting more dangerous because there was more traffic and more construction, bigger plazas. Open plazas are a challenge for people using a cane because there’s nothing to tap on.
I tell the story in the last chapter of my book, “The Dog Who Changed My Life.” One day my then-11-year-old grandson, who has a dog, showed up with a podcast that he asked me to listen to with him. It was about one of the guide dog training programs.
I had never thought about getting a guide dog because, in most of these programs, you have to go to the program’s facility and live there for a month to learn to use the dog, and there wasn’t any way that I was going to be able to do that. I just didn’t have the time. But I discovered that in Connecticut, there is a program called Fidelco Guide Dog Foundation that only brings the dog to where you live.
I signed up and applied. It took about a year. Getting a guide dog is like going to college. There are forms to fill out. There are interviews. There are home visits. After a year, a trainer showed up in a van with this beautiful two-year-old German shepherd named Vixen. [The trainer] spent two weeks with us, teaching me how to work with Vixen. She was fully trained. All she needed was to get confidence in me.
I go everywhere with Vixen. She travels. We commute on the Metro. She loves escalators. [My wife] Edie and I live in rural Virginia now, and Vixen and I take long, long walks every day, sometimes as far as six miles down the country roads here. Until I got Vixen, I couldn’t do those kinds of things myself.
Vixen has given me a huge amount of independence. It’s quite a wonderful relationship. It’s not just that she’s a guide dog. I’m totally attached to this beautiful animal, and she’s a big part of my life and my wife’s life. I hadn’t expected that when I got the dog. I had no idea of how capable these animals are, or how deeply the relationship would develop.
How can readers find your book?
Vision: A Memoir of Blindness and Justice is available for purchase directly from my publisher, Hachette or from most major resellers. A book launch event will be taking place at Politics and Prose on June 11 at 7 p.m. I’ll be speaking about the book with author and New Yorker staff writer Jane Mayer at the event, which is open to the public.
