The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The District of Columbia has two regional courts: the D.C. Superior Court and the D.C. Court of Appeals. These regional courts are separate from the U.S. District Court for the District of Columbia and the D.C. Circuit Court of Appeals. The D.C. Home Rule Act created a very unusual process for selecting judges for these regional courts. D.C. Code §§ 1-204.34(d)(1); 1-204.33(a). The President can only select his nominee from a list of three candidates generated by the D.C. Judicial Nominations Commission. And if the President fails to choose one of these candidates, the Nomination Commission appoints the candidate for Senate confirmation.
How can this group of advisors tell the President who to nominate, and override his decision? This question is somewhat difficult as an original matter, because it isn't clear if these territorial judges are even "officers of the United States." If the judges are not "officers of the United States," then they need not be appointed pursuant to the rigors of the Appointments Clause. (Will Baude wrote on related issues on territorial courts). Still, I have long thought this provision likely imposes an unconstitutional constraint on the President's appointment power under modern doctrine.
During the Trump years, I chatted with some people in government about a possible challenge. They agreed the rule was problematic, but there wasn't enough of a demand to fight it. I was told these courts are (with all respect to the members) relatively unimportant. Still, this regime has created yet another legal conflict.
The statute requires that "[o]ne member [of the Commission] shall be appointed by the chief judge of the United States District Court for the District of Columbia, and such member shall be an active or retired Federal judge serving in the District." So not only is the President's appointment power constrained, it is constrained by a federal judge who is appointed by another federal judge! What a cluster.
Beyond these apparent constitutional difficulties, this regime also creates ethical problems. A sitting federal judge is responsible for nominating people to prestigious regional court positions. This authority gives sitting judges power over the very people who wish to serve as judges. It is not difficult to imagine that attorneys who wish to serve on the court will go out of their way to seek the favor of the nominating judge. Moreover, possessing this power gives judges the ability to dispense benefits towards their friends, while rejecting their non-friends. The potential appearances of impropriety abound. I can't fathom why any sitting federal judge would agree to serve on this commission. But then there is Judge Emmet Sullivan.
Last year, Judge Laurence Silberman of the D.C. Circuit filed a misconduct complaint against Judge Sullivan. Silberman contended that the D.C. Home Rule Act cannot override judicial ethical restraints, including Canon 4F and 5. Judge Sullivan sought an opinion from the Committee on Codes of Conduct of the Judicial Conference of the United States. The Committee determined that service on the commission was not unethical. However, a "minority of Committee members disagreed" with that conclusion.
A minority of Committee members disagreed with this advice on the basis that service on the Commission can both be political and may compromise the independence of the judiciary by enmeshing it with other branches of the federal government (including the federally created District of Columbia government).
On November 16, 2021, Chief Judge Sri Srinivasan dismissed Silberman's complaint in 3.5 double-spaced pages, using the ghastly Calibri font. If only the frivolous misconduct complaint against Judge Griffith was dismissed with such vigor.
Silberman was quite candid about his intentions. Srinivasan included this barb:
After the Committee issued its opinion, the complainant submitted correspondence stating that, "[d]espite the opinion issued by the Committee," the complainant wished to reiterate the contention that the subject judge's service on the Commission constitutes judicial misconduct. The complainant did so, however, "with the expectation that you [i.e. the undersigned] will dismiss [the] complaint in light of the [Committee's] opinion," which then "would give [the complainant] a basis to appeal," with the complainant expressing a desire ultimately to "challenge the Committee on Codes of Conduct opinion" before "the Judicial Conference."
Silberman's letter is spicy. It almost reads like a dissenting opinion. Here are a few highlights:
First, he works in a classic Godfather reference:
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.
Second, Silberman reminds everyone that he wrote the panel opinion that was reversed in Morrison v. Olson. He tweaks Justice Scalia's "wolf" line to great effect:
Although I have raised this complaint, my concern about congressional encroachment into Article III should be of equal concern to all Article III judges (it might be noted that I have a very long-term interest in separation of powers. See In re Sealed Case, 838 F.2d 476 (D.C. Cir. 1988), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988)). . . .
It should be obvious that the statute implicates separation of powers. If Congress can authorize judges to behave in a fashion that the judiciary regards as unethical, that constitutes an encroachment of Article I authority into Article III.1 As Justice Scalia noted, this "wolf [albeit a small wolf] comes as a wolf." Morrison, 487 U.S. at 699 (Scalia, J., dissenting). As with Morrison and other cases involving the separation of powers, this case is fraught with political implications, but judges have a duty to confront it without regard to such concerns or for that matter congressional reaction.
Third, Judge Silberman works in a great Federalist 51 reference:
D.C. judgeships are quite prestigious positions. They are paid, by statute, the same as federal judges. A lawyer who wishes for such an appointment, must tread softy when appearing before a gatekeeper judge, even in cases where a client's interest might otherwise require a somewhat aggressive position vis a vis the judge. The Committee merely stated in, response to my concern, that lawyers can be always trusted to purse their clients' interest. That simplistic reasoning reminds me of the old refrain that "If men were angels, no government would be necessary." Federalist No. 51.
Finally, he lambastes the committee in stark terms:
It should be obvious that the Committee's opinion which I am challenging is a classic example of a result-driven legal opinion. The reasoning is so tortured and inexplicable it is hard to imagine that any Article III judge could have written it. I believe a fair reading, indeed even a cursory reading, of the previous opinions of the Committee reveals that this opinion stands out like a very sore thumb. It must be overridden if the independence of the judiciary is to be protected.
[Update: In a previous version of this post, I wrote that Silberman appealed to the Judicial Conference. I was wrong. He appealed to the Circuit Judicial Council, which is the level below the Judicial Conference]. Chief Justice Roberts chairs the Judicial Conference, which is comprised of the Chief Judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a District Judge from each regional judicial circuit. (Here are the current members). I suspect Judge Silberman will prevail on appeal. Judge Sullivan often forgets which branch of government he works for. The Judicial Conference can remind him. And some criminal defendant who is sentenced by a D.C. Superior Court judge should raise an Appointments Clause challenge on direct review. Tee the issue up nicely for SCOTUS to find a violation of separation of powers, but everything remains the same under the de facto officer doctrine.