An Update on Judge Silberman’s Complaint Against A Federal Judge Picking Other Federal Judges
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 (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 o
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