The Volokh Conspiracy
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Can an active federal judge serve on a committee with the power to nominate another federal judge over the President's objection? You might think the answer is obviously no, but the D.C. Home Rule Act authorizes just such a process. And Judge Emmitt Sullivan (D.D.C.) chairs that committee. In 2020, Judge Laurence Silberman (C.A.D.C.) filed a misconduct complaint against Judge Sullivan. What happened after the complaint was filed is complicated. I described that complaint, and the ensuing proceedings, in a November 2021 blog post. I won't repeat the tortured posture here. Go read that post and come back. I'll wait. Welcome back.
Since November 2021, a lot has happened.
On February 14, 2022, the Judicial Council of the District of Columbia Circuit affirmed Chief Judge Srinivasan's ruling, which had dismissed Judge Silberman's complaint. Judge Silberman did not have a happy Valentine's Day. That order was joined by then-Circuit Judge Jackson, and District Judges Howell, Contreras, Cooper, and Chutkan. Judge Katsas wrote a dissent, which Judge Rao joined. Judge Walker seemed to agree with Judge Katsas's analysis, but would have affirmed the dismissal of the complaint. (For those keeping score at home, five Obama/Biden appointees were in the majority, and three Trump appointees were in dissent.)
Judge Katsas pithily summarized the dispute:
This misconduct proceeding arises from a dispute about whether a sitting federal judge may serve on a nominating commission for the District of Columbia courts. A divided committee of the Judicial Conference advised the judge in question that he may do so. Based on that advice, the Chief Judge of our circuit dismissed a misconduct complaint against the judge, and the Judicial Council now denies further review. In my view, the committee's advice was mistaken. For the D.C. courts as elsewhere, judicial selection is inescapably political. And it is thus improper for sitting federal judges to serve on the D.C. nominating commission, just as it would be improper for them to serve on nominating commissions for state or federal courts. The committee itself has long recognized the latter point, and its efforts to distinguish the D.C. commission are unpersuasive. Given the long history of sitting judges serving on the D.C. nominating commission and the advice of the committee, I would impose no sanction on the judge at issue for his past service on the commission. But I would conclude this proceeding only if the judge takes corrective action by resigning from the commission or ceasing to hear cases while serving on it. As my colleagues deny review unconditionally, I respectfully dissent.
Three days later, Judge Silberman noticed an appeal to the Executive Committee of the Judicial Conference of the United States and to the Committee on Judicial Conduct and Disability. The balkanized hierarchy of the various components of the Judicial Conference is extremely complicated. The Judicial Conference lists about twenty different committees, without any description of their function or membership. It wasn't clear to me, at least, which committee even had jurisdiction over Silberman's appeal. Ultimately, neither the Executive Committee of the Judicial Conference nor the Committee on Judicial Conduct and Disability would assert jurisdiction over the appeal. Instead, yet another committee would review the appeal.
I am writing to inform you that your concern regarding the District of Columbia Home Rule Act requirement that a federal judge serving in the District of Columbia be appointed to and serve on the Judicial Nomination Commission for the selection of nominees for the District of Columbia courts has been referred to the Committee on the Judicial Branch for consideration of any issues that fall within its jurisdiction, with input from other Conference committees, as appropriate.
I was not able to find any meaningful information about the Committee on the Judicial Branch. Eagan's letter indicated that Judge Rodney W. Sippel (E.D.Mo.) chairs the committee. Who else serves, I could not tell you.
After jurisdiction was asserted by the Committee on the Judicial Branch, Judge Silberman withdrew his petition for review with the Judicial Conference Committee on Judicial Conduct and Disability. Silberman also sent a letter to Judge Sippel.
On August 1, 2022, Judge Sippel responded with a two page letter. The Committee concluded that "action on this matter, including any sort of recommendation from the Judicial Branch Committee to the Judicial Conference, is not warranted." Why is no recommendation warranted? Who knows. There is no actual analysis–just a bunch of conclusion. Don't take my word for it. Here is the entire explanation:
The Committee noted that there was no historical record to suggest that the Judicial Conference offered any comments to Congress when the D.C. Home Rule Act was pending or was amended. Furthermore, the Committee discussed that the statute had been operating without any concerns raised by members of the judiciary or the D.C. government prior to when you raised this issue in August 2020. After discussing the matter, including the composition of the Judicial Nomination Commission and the similarly situated Tenure Commission, the Committee concluded that the provision of the D.C. Home Rule Act requiring that a D.C. federal judge serve as a member of the Judicial Nomination Commission does not implicate separation of powers or entangle the serving judge in a political function such that it harms the reputation of the branch. In addition, the Committee concluded that the Home Rule Act did not seem to otherwise damage the reputation of the branch or enmesh the judiciary in local politics.
Judge Sippel explained that the Committee on the Judicial Branch discussed the issue at its meeting on June 15, 2022. It is not clear how this conclusory letter took six weeks to draft and deliver. No dissents were noted, but we do not know if the vote was unanimous. This Committee should be embarrassed with its work product. If any attorneys submitted such a shallow brief, the court would chew them out.
The following day, August 2, Judge Silberman wrote a letter to the Executive Committee of the Judicial Conference:
I am in receipt, as are you, of a rather puzzling letter from Judge Sippel, the Chairman of the Committee on the Judicial Branch. The Committee indicated that the prior correspondence and related documentation regarding my judicial misconduct complaint was "informative and helpful." Yet, its letter did not even cursorily engage with the extensive analysis in those materials. . . .
In sum, I have raised a serious question—no one doubts that—regarding judicial ethics and separation of powers. I believe the judiciary is entitled to a thoughtful analysis from the Judicial Conference. For the Conference to follow the advice of the Judicial Branch Committee would be an injudicious attempt to sweep under the rug a politically sensitive legal question.
Next up, the Executive Committee of the Judicial Conference will review this case. The members of this committee are appointed by Chief Justice Roberts. According to a February 2020 press release, the members are:
Judge Clair V. Eagan (N.D.OK) (Chair), Chief Judge Lavenski Smith (CA8), Judge Jeffrey Howard (CA1), Judge Sidney R. Thomas (CA9), Judge Robert James Conrad, Jr. (W.D.N.C.), and Judge L. Scott Coogler (N.D.AL).
The Press Release notes that Judge Robert Katzmann (CA2) was on the Committee, but he passed away. I'm not sure who replaced him. Moreover, James Duff was on the Committee, but he has stepped down, and was replaced by Judge Roselyn Mauskopf.
Judge Silberman does not seem confident with at least one member of the Executive Committee:
I note that a copy of the Committee's terse rejection of my position was sent to Judge Mauskopf. I suspect her involvement is unfortunate for me. Her predecessor, Jim Duff, had indicated sympathy for my views.
As I understand the structure, above the Executive Committee of the Judicial Conference is the Judicial Conference. The Chief Justice presides over the Judicial Conference, joined by 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. Who is on that Committee? I kid you not, the list of members on the Judicial Conference site has a broken link. Eventually, this issue will reach the top.
I can tell you that there will be an event in November on this topic. Stay tuned for more details.