MCGOWAN, CARL (1911–1987)

Carl McGowan served on the united states court of appeals for the District of Columbia Circuit from 1963 until his death. Before his appointment, he had a private practice and served on the law faculty of Northwestern University. He was a judge whose intelligence and humanity made him suited to the craft. His opinions were lucid in style and expression, sound in analysis, and combined intellectual acuity, practical understanding, and good sense.

McGowan could not be pigeonholed as a "liberal" or a "conservative." He was the sort of judge a lawyer might wish for before knowing which side of the case he had to argue. McGowan won the respect and affection of his colleagues on the bench as well as of the bar of the district of columbia. He counseled not by preaching but by example. He was learned in the law, evenhanded in approach, honest, and wise. His ability to conciliate between opposing views allowed his court to resolve cases on common ground. McGowan's dissents barely match the number of terms he served on the court—some twenty-five dissents in a quarter century's service. From the mid-1960s to the mid-1980s, the overall dissent rate in the D.C. Circuit in cases with published opinions hovered around 13 percent; indicative of McGowan's moderating influence, in cases in which he was a panel member, that rate was five percent.

Judge McGowan's patient genius worked through many perplexing constitutional issues. In Rothstein v. Wyman (2d Cir. 1972), for example, his opinion delineated the critical line drawn by the eleventh amendment between what federal courts can and cannot order states to do. In Nixon v. Administrator of General Services (D.D.C. 1976) he persuasively analyzed a panoply of constitutional objections pressed on behalf of a former president. In high tribute to Judge McGowan, the Supreme Court's majority essentially adopted his reasoning on the hard questions of separation of powers, executive privilege, invasion of privacy, freedom of expression, and bill of attainder.

Ruth Bader Ginsburg
(1992)

Bibliography

Powell, Lewis F., Jr. , et al. 1988 In Memoriam Judge Carl McGowan. George Washington Law Review 56:681–702.