David A. Faber

David Alan Faber
Senior Judge of the United States District Court for the Southern District of West Virginia
Incumbent
Assumed office December 31, 2008
Chief Judge of the United States District Court for the Southern District of West Virginia
In office 2002–2007
Preceded by	Charles Harold Haden II
Succeeded by	Joseph Robert Goodwin
Judge of the United States District Court for the Southern District of West Virginia
In office November 21, 1991 – December 31, 2008
Appointed by	George H. W. Bush
Preceded by	Seat established by 104 Stat. 5089
Succeeded by	Irene C. Berger
Personal details
Born	David Alan Faber (1942-10-21) October 21, 1942 Charleston, West Virginia
Education	West Virginia University A.B. Yale Law School J.D.

David Alan Faber (born October 21, 1942) is a Senior United States District Judge of the United States District Court for the Southern District of West Virginia.

Education and career

Born in Charleston, West Virginia, Faber graduated from Sissonville High School and received an Artium Baccalaureus degree from West Virginia University in 1964 and a Juris Doctor from Yale Law School in 1967. He was in private practice in Charleston from 1967 to 1968. He was in the United States Air Force, JAG Corps from 1968 to 1972, and was then in the United States Naval Reserve from 1973 to 1977. He returned to private practice in Charleston from 1972 to 1981, and was in the West Virginia Air National Guard from 1978 to 1992. He was the United States Attorney for the Southern District of West Virginia from 1981 to 1986, again returning to private practice in Charleston from 1987 to 1991, also serving as a special part-time Assistant United States Attorney for the Northern District of West Virginia from 1988 to 1990. Judge Faber earned his Ph.D. in history from the University of Cambridge. He earned his LLM from the University of Virginia.

Federal judicial service

On August 1, 1991, Faber was nominated by President George H. W. Bush to a new seat on the United States District Court for the Southern District of West Virginia created by 104 Stat. 5089. He was confirmed by the United States Senate on November 21, 1991, and received his commission on November 25, 1991. He served as Chief Judge from 2002 to 2007, assuming senior status on December 31, 2008. Judge Faber sits by designation on the United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Ninth Circuit.

Among Judge Faber's most notable opinions is his separate opinion (concurring in part and concurring in the judgment) in the disparate-impact liability case Hardie v. NCAA, 2017 WL 2766096 (9th Cir. 2017). Judge Faber stated:

1) When the courts racially balance the participants in public accommodations, they impose what is effectively a quota—be it fixed or moving. This quota arrangement confines a participant to the playing room allotted to her race; like Linda Brown and her contemporaries more than sixty-three years ago, today's participant must learn to tailor her aspirations to the quota system's ingenious separate but equal regime. See Brown v. Board of Education, 347 U.S. 483 (1954). Shifting quotas such as those which disparate-impact liability foists on us are “[g]overnment action[s]” that “divid[e] us by race.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 746 (2007) (plurality opinion). They are “inherently suspect because such classifications promote notions of racial inferiority and lead to a politics of racial hostility, reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin, and endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Id. (plurality opinion) (citations and internal quotation marks omitted). “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” Rice v. Cayetano, 528 U.S. 495, 517 (2000).

2) Since an impartial sovereign ordinarily may not make one set of rules for one race and another set of rules for another race, disparate-impact liability triggers equal-protection concerns. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) (“The federal sovereign, like the States, must govern impartially.”); Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (“Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.”).

3) Title II—“All persons shall be entitled to the full and equal enjoyment ... without discrimination or segregation”—does not allow disparate-impact liability.

4) Private groups have the right, one with robust constitutional dimensions, to decide with whom they will associate, see Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (“The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association [under the First Amendment] if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints.”)—and no one can fault them.

5) Federal courts' application of extraneous evidence such as human resources experts', economists' and criminologists' reports is misplaced. First, considering such materials for the purposes of applying Title II to certain facts does not fall within the judicial function's province. Second, it gives litigants the license to cherry-pick the convenient evidence they wish to submit and thus the ability to game the litigation. Third, it is not something that federal judges untutored in statistics, economics, sociology, criminology, and other social sciences are even competent to ascertain and adjudicate. Even if, by dint of luck, the designated federal judge were capable of engaging in competent social-science analysis to figure out if the impact were disparate, her doing so would not elicit the public's confidence in the legitimate discharging of the judicial role. Never does Article III, when investing the “judicial [p]ower,” U.S. Const., Art. III, § 1, cl. 1, in the federal courts, allow our reasoning to be informed by “questionable social[-]science research rather than [legal] principle.” Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Thomas, J., concurring). The Framers of our Constitution would have seen the federal courts' considering such evidence as mere “pretext for” the Third Branch to “gradual[ly] and unobserved[ly] usurp[ ]” the policy-making “power” that the Constitution commits to our coordinate branches. The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (James Madison).

6) That a disproportionately high number of felons might self-identify as members of any particular race(s) does not somehow convert a group's policy into a racially discriminatory one. Certainly, “[s]ome activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews,” for instance. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270 (1993) (emphasis added). A causal relationship between yarmulkes and Jewish people is obvious. But committing felonies is not “predominantly” co-extensive with or an essential element of self-identifying with certain races; and saying otherwise is both inaccurate and demeaning to individuals who do self-identify with those races. Id. The latter assertion might be the result of invidious discrimination, of the soft bigotry of low expectations, or of both. In any event, it “rests on an assumption of [racial] inferiority.” Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Thomas, J., concurring).

7) Consulting the cognoscenti's social-science research, which frequently is fraught with flawed methodologies and philosophical, political, and other biases, to decide legal questions is tantamount to putting a thumb on the scales to produce a palatable result.

8) Alexander Hamilton believed that the federal courts would be “the best expedient which can be devised in any government” because they help “secure a steady, upright, and impartial administration of the laws” that the whole of the American People, not just the conclave of experts, have enacted. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (Alexander Hamilton). Accountable to and representative of the American People, the political branches are composed of members “sufficiently numerous to feel all the passions which actuate a multitude.” The Federalist No. 47, p. 332 (C. Van Doren ed. 1945) (James Madison). Neither of these traits is true of the experts or, for that matter, of the federal courts. Designed to be the “least dangerous” branch, The Federalist No. 78, p. 465, one without any “political rights,” id., we are empowered to exercise “neither force nor will but merely judgment,” id. (capitalization altered), when we construe our People's statutory and constitutional commands.

Sources

• David A. Faber at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.