Judge Silberman Petitions The Judicial Council To Review His Misconduct Complaint Against Judge Sullivan [Updated]

"The reasoning [of the Committee's opinion] is so tortured and inexplicable it is hard to imagine that any Article III judge could have written it."


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."

And appeal he has. On November 18, Judge Silberman petitioned the Judicial Council to review Judge Srinivasan's decision.

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.


NEXT: Religious Sincerity and Executions

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  1. Wouldn't this logic mean that district judges' authority to appoint magistrate judges would render them similarly ethically compromised?

    1. I'm watching this to see what I learn, so let me (IANAL!) throw in some pennies and see if I have learned anything yet.

      I think the difference is that magistrate judges are not Article III judges, maybe more like glorified clerks? (IANAL!!!) whereas the DC judges being discussed are appointed by the President, thus they must be Article III judges, and it is unconstitutional for judges to constrain who the President can appoint as a judge. The three branches are supposed to be separate except as enumerated in the Constitution, such as for the veto over legislation, the veto override, appointing judges, impeachment, etc.

      1. Further .... Presidents usually pick their judicial nominees from lists offered by the ABA and other organizations, and I imagine his aides and staff have far more impact on his choices than he does himself. But this is not a legal requirement. The President can nominate anybody, and the Senate can approve any weird nominee if they want, possibly limited by Constitutional age limits like for the House, Senate, and President. Whereas this DC business has some legal force behind it, whether legislation or judge-made law (I don't know which in this case).

      2. 1. DC Superior Court judges are not Article III judges (they serve fixed terms of office, for instance).

        2. Judge Silverman is not, as best I can tell, suggesting that it's unconstitutional for the committee to be involved in nominating DC Superior Court judges (as opposed to giving the president fill discretion). Rather, he's saying that it's a problem to allow (or require) an Article III judge to be a member of the committee.

        1. If we let D.C. become the 51st state, the problem is solved.

      3. Well Magistrate Judges are not like glorified clerks. Since they sign warrants, conduct hearings, set bonds, conduct civil trials by consent, misdemeanor trials, mediate cases, etc.

        1. In fact, federal magistrate judges have their own clerks and there is competition for those spots as well.

    2. Literally thought the same thing. Bankruptcy too.

    3. “but the Congress may by Law invest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

      It’s pretty clear a magistrate judge is an inferior officer who can be appointed by a court. Whether a member of this type of committee is or not, may be more questionable.

      But since the Constitution itself contemplates courts appointing certain kinds of officers, it seems hard to see how courts doing so persuant ro a congressional statute could be considered unethical or could represent misconduct on the judges’ part, even if it should turn out the congressional statute authorizing the appointment is in some way invalid. And the same for the person serving on the committee through a judicial appointment authorized by statute.

  2. I hate Calibri. But Microsoft programs seem to convert to it no matter what font you input.

    1. You need to change the font, then create a new blank template file.
      Google "blank template file" if you don't understand.

      My favorite font for Word docs is Georgia.

    2. Century family is best. Although I guess design people say sans serif is better for screens, and serif is better for printed.

  3. If we let D.C. become the 51st state, the problem is solved. viral Gujarati shayari

  4. 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.

    Wait, why is it bad if attorneys try to please the judge? Isn't the whole point of a judge that they get tell attorneys (and others) what to do?

    1. I assume he means something like "avoid antagonizing"—forgoing an appeal of an erroneous ruling that could lead to an embarrassing reversal, for instance.

  5. Whether the law authorizing the method of appointing the commitree is constitutional or not, serving on a committee in a manner authorized by law cannot possibly constitute misconduct.

    Just as a judge cannot engage in misconduct by making an incorrect decision - such decisions can be reversed, but they are not misconduct - so official activities conducted pursuant to statutes are not misconduct, even if the authorizing statutes are invalidated.

    It’s very important to distinguish legal incorrectness from official misconduct. Official misconduct is potentially impeachable.

    We don’t want a world where, in some no-holds-barred conflict between the political branches and the judiciary, Congress passes deliberately unconstitutional statutes ordering judges to do things for the specific purpose of being able to impeach and remove the suckers who obey.

    Characterizing official actions pursuant to statutes governing the judiciary as misconduct merely because those statutes are invalid would open us up to such a world. It would be a gross violation of the fundamental independence of the judiciary and judges’ constitutional right to hold their offices during their good behavior.

    1. In the 80s, the Supreme Court declared the entire Bankruptcy Court system unconstitutional, but stayed its decision to give Congress time to fix it. It would be absurd to suggest that the Article III judges who appointed the bankruptcy judges engaged in misconduct, or that the bankruptcy judges themselves who the Court said were erroneously exercising Article III powers were engaged in misconduct.

    2. And just today, the NY Times had an article saying that Republican officials in Wisconsin are suggesting prosecuting members of the Wisconsin Election Commission for felonies for giving allegedly illegal election guidance. State law requires in-person visits to nursing homes before absentee ballots can be mailed to them. During Covid, the Election Commission issued guidance waiving the in-person visit requirements. Wisconsin Republican officials are now asserting that not only was every absentee ballot from a nursing home without a prior visit invalid, it was fraudulent, and the members of the Election Commission who supported waiving the rules should be prosecuted for felony vote fraud for every such vote cast.

      I can’t think of a more salient example of the importance, not just of official immunity, but of maintaining a clear distinction between incorrect interpretations of the law (if any) in the course of ones official duties and misconduct. The core of the Constitution is to prevent a world where political differences become crimes, where the state is overthrown as an overarching entity and becomes a mere instrument of a faction seeking dominance. Without such a distinction, our imstitutions will become like those of the Roman Empire, which continued to have a Senate long after everyone stopped bothering to pretend to pay attention to anything they did.

      1. I don't understand. If what they did is a felony, then why should they not be prosecuted. If it wasn't, the prosecution won't get very far.

        If the State electoral law gives them power to waive various parts of the law, when it seems to them a good idea to do so, then they're home free. If it doesn't, and they did it anyway, and if that's an felony, why would declining to prosecute them be a bad thing ?

        1. or even a good thing

        2. What they did wasn't a felony. Which is why this "idea" came from a sheriff, rather than someone actually knowledgeable about law.

        3. So if the legislature made (say) practicing Catholicism a felony, you’d have no problem with that? “If what they did was a felony, then why not prosecute them?”

          If something can’t constitutionally be criminalized, it isn’t a felony. And trying to get people to prosecute it shows disrespect for the Constitution and a willingness to flatly ignore it to get at ones personal enemies.

          Like legislative and judicial immunity, lquasi-judicial immunity is a constitutional principle.

  6. "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."

    I for one cannot wait for the hysterical post in a few months demanding that the Chief Justice resign when this does not happen.

  7. Judicial appointments are inherently political, so it's important that we prevent judges from being involved in judicial appointments, because then we might not think that those judges (who were appointed by a political judicial appointment process) were political.

    Did I get that right?

  8. Why did Silberman wait more than a decade -- maybe two -- to complain about this issue? Has he even attempted to dispel the obvious sense that this is a campaign born of personal animosity or partisanship?

    Did Silberman ever complain about a Republican who held a position on the relevant commission?

    Why did Silberman think it was a good idea to file this complaint after publicly bragging about how he helped put Clarence Thomas on the D.C. Circuit Court of Appeals?

    Is there any reason to believe Silberman is anything other than a partisan clinger and right-wing misfit, or that other judges will (or should) stop rejecting his complaint?

    What a loser. Thank goodness for the culture war, reason, and modernity.

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