Judge Silberman Petitions The Judicial Conference To Review His Misconduct Complaint Against Judge Sullivan
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. 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 re
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