Bench Memos

Law & the Courts

Judge Silberman’s Challenge to Judicial Participation on Nomination Commission

I was puzzled by this recent Washington Post story that recounted a supposed “dust-up” between D.C. Circuit judge Laurence Silberman and federal district judge Emmet Sullivan over Sullivan’s service on a judicial nomination commission for the District of Columbia’s municipal courts. Ten paragraphs in, the story quotes Silberman as saying that his judicial-misconduct complaint against Sullivan was “not personal [but] systemic,” but it then seems to go on to discredit Silberman’s disclaimer.

As Silberman explains more fully in a petition that he filed yesterday asking the Judicial Council of the D.C. Circuit to review the denial of his complaint by the Committee on Codes of Conduct:

I wish to make clear that although my misconduct charge is nominally directed at Judge Emmet Sullivan, I am quite aware that for some time district judges have been appointed to the position he presently occupies. The ethical problem which I believe the practice creates has not been raised previously—at least formally. Therefore, I do not criticize Judge Sullivan for having accepted the position on the Judicial Nomination Commission. In other words to quote the famous line from the Godfather, my complaint is “not personal”; “it’s strictly business”—Article III business. I was prompted to consider the question after reading a memo from Judge Sullivan to all the federal judges in the D.C. Circuit which noted his role.

As Silberman spells out, the Home Rule Act for the District of Columbia requires the president to select nominees for vacancies on the D.C. courts from a list of three candidates generated by the D.C. Judicial Nomination Commission (and, if the president fails to do so, empowers the commission itself to submit its own nomination to the Senate for confirmation). The Act also requires the chief judge of the federal district court for the District of Columbia to appoint to the commission “an active or retired Federal judge serving in the district.”

The Committee on Codes of Conduct charged with advising federal judges on their ethics obligations had previously issued an opinion that “a judge should not serve on an official state committee formed to select state trial and appellate court judges.” The logic of that opinion would appear also to apply to service on the D.C. Judicial Nomination Commission. So the interesting issue that Silberman has teed up is whether (in his words) “a federal statute that purports to authorize federal judges to act in a fashion contrary to federal judicial ethics [can] override judicial ethical restraints.”

I don’t have an immediate take on this issue, but nothing about it suggests that Silberman is engaged in a spat with Sullivan. Silberman explains in his petition why he strongly disagrees with the Committee on Codes of Conduct’s denial of his complaint. (For what it’s worth, the Committee notes that a “minority of Committee members” disagreed with its denial.)


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