Bench Memos

Law & the Courts

Judge Srinivasan’s Bizarre Order on Demand Justice’s Smear of Judge Griffith

As someone who has had high regard for D.C. Circuit chief judge Sri Srinivasan (even while recognizing the ideological gulf between us), I am very surprised by his order last Friday regarding Demand Justice’s smear of his colleague Thomas Griffith. That order reflects a set of judgments by Srinivasan that range from implausible to indefensible, and the entirely predictable—and, it would seem to many, intended—effect of his order, especially given its timing, was to generate political ammunition for those opposing the confirmation of Griffith’s nominated successor, Judge Justin Walker.

Let’s consider each of the judgments that Srinivasan made:

1. Srinivasan requested that the Chief Justice transfer Demand Justice’s complaint to the judicial council of another circuit, pursuant to Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. But these Rules contemplate that a circuit’s chief judge will ordinarily handle all complaints regarding his colleagues. A request for transfer is to be made only in “exceptional circumstances.” As Srinivasan notes in his order, the commentary to Rule 26 says that “transfers may be appropriate … where the issues are highly visible and a local disposition may weaken public confidence in the process.” The underlying report that the commentary cites elaborates this circumstance: a circuit

might wish to transfer to another circuit … a complaint, especially a high-visibility complaint, whose local disposition might create a threat to public confidence in the process—the view that judges will go easy on colleagues with whom they dine or socialize.

Except in the fever swamps of the Left, I don’t see how Demand Justice’s complaint was “highly visible.” I also don’t see why anyone would have objected to Srinivasan’s disposition of it or why that might have “create[d] a threat to public confidence in the process.” Again, it’s the ordinary rule that a chief judge handles complaints about his colleagues.

During his entire tenure on the D.C. Circuit, Srinivasan has been a colleague of Griffith’s. He surely knew that Griffith’s wife has long suffered from a serious illness and that Griffith has worked extensively from home in order to care for her. He surely knew that Griffith hadn’t hired clerks for next year. Like everyone else familiar with the D.C. Circuit, he surely had heard well back into 2019 that Griffith would likely step down. In short, he surely knew that Demand Justice’s charges were bogus. But by requesting a transfer of them instead of disposing of them himself, he acted to perpetuate them.

2. Srinivasan waited until last Friday to make his transfer request. But what he cites as the “circumstances [that] warrant a request for transfer”—that Demand Justice’s “request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court”—existed from the moment Srinivasan received Demand Justice’s letter six weeks earlier. Per my point 1, I don’t think that Srinivasan should have made that request at all. But if he was going to make it, why do so on the cusp of Walker’s hearing? Why not have done it right away? Or, alternatively, if you’ve already waited six weeks, why not wait a few more? Why not wait to see if Demand Justice ever properly submits its complaint under penalty of perjury?

3. Srinivasan made his order public. The usual rule (Rule 23(b)(1)) is that the “consideration of a complaint by a chief judge … is confidential”:

Information about this consideration must not be publicly disclosed by any judge or judicial employee, or by any person who records or transcribes testimony except as allowed by these Rules.

This usual rule is subject to an exception:

A chief judge … may disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.

Srinivasan invokes this exception, but offers no further explanation why he thinks it applies. For the reasons previously stated, I don’t see how public disclosure of his order is “necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct.” On the contrary, I think that Srinivasan’s public disclosure, especially given its timing, invited—and would reasonably be perceived as having been intended to invite—distorted hit pieces like this New York Times article on Monday that grandiosely begins:

Just days before a high-profile Senate confirmation hearing to fill a vacancy on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the court’s chief judge has opened the door to an inquiry into whether ethical improprieties occurred in the creation of the coveted opening.

4. In the face of Demand Justice’s continuing failure to comply with the requirement of setting forth its complaint under penalty of perjury, Srinivasan substituted his own “identification” of the complaint’s charges. That’s the technical term under Rule 5 by which charges can be considered in the absence of a proper complaint under Rule 6. As he explains, he had to identify the complaint in order to be able to have it transferred.

But Rule 5, in explaining this alternative of identification, states:

Identification. When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed.

As I read this, a chief judge must have “information constituting reasonable grounds for inquiry” in order to make an identification of a complaint. But Srinivasan states only that he is identifying the complaint “without any inquiry by this court into the statements contained in the unverified correspondence or the questions posited by the organization in the correspondence about the possibility of judicial misconduct.” So he doesn’t indicate that he has made any effort to establish the predicate needed for identification.* Nor, given how frivolous Demand Justice’s charges are, could he do so.

In sum, these four judgments, each of which was essential to Srinivasan’s order on Friday, strike me as flatly wrong or highly dubious, and the combination of all four is particularly extraordinary.

* I’ve tweaked the original version of this sentence.

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