There are two District of Columbia regional courts. They are the D.C. Superior Court (DC) and D.C. Court of Appeals (DC). They are independent from both the U.S. District Court of District of Columbia or the D.C. Circuit Court of Appeals. D.C. Home Rule Act was a novel way to choose judges for these local courts. D.C. Code §§ 1-204.34(d)(1); 1-204.33(a).Only three D.C. candidates can be used by President to choose his nominee. Judicial Nominations Commission. If the President does not choose any of these candidates the Nomination Commission nominates them for Senate confirmation.
What can these advisors do to tell President Trump who to nominate and how does he override that decision? It is not clear whether these territorial judges actually are “officers” of the United States. This makes this question difficult. The Appointments Clause does not apply to judges who aren’t “officers” of the United States. Will Baude also wrote about similar issues regarding territorial courts. Even so, this restriction on President’s power to appoint under the modern doctrine is something I believe strongly.
Some people from government were interested in a potential challenge during the Trump years. Although they agreed that the rule was problematic, there wasn’t enough demand for it to be challenged. They are, with all respect for their members, relatively minor. This regime is causing yet another legal conflict.
It is required by law that[o]Member ne [of the Commission]The chief judge of United States District Court, District of Columbia shall appoint such a member. Retired or active Federal JudgeServing in the District The President has limited power to appoint, but it’s also constrained by the appointment of a federal judge. This is quite a group.
These apparent constitutional problems are not the only problem. This system also poses ethical issues. Nominating individuals to high-ranking regional court posts is the responsibility of a sitting federal judge. These judges have the power to nominate judges. Imagine that lawyers who want to join the court would go to any length to get the approval of the nomination judge. This power allows judges to give benefits to their friends and reject their enemies. There are many potential signs of fraud. This commission is beyond my comprehension. Then there’s Judge Emmet Sullivan.
Judge Laurence Silberman, D.C. Circuit filed a complaint of misconduct against Judge Sullivan. Silberman claimed that the D.C. Home Rule Act could not override ethical restraints imposed by the judiciary, such as Canon 4F or 5. Judge Sullivan asked for an opinion of the Committee on Codes of Conduct of the Judicial Conference of the United States. It was determined that the service of the Commission members was ethical. However, “a minority of Committee members disagreed with this conclusion.” (I don’t have a copy if the Committee opinion).
On the 16th of November 2021 Chief Judge Sri Srinivasan dismissed Silberman’s complaint on 3.5 double-spaced, using the horrendous Calibri font. It would be a shame that the complaint of misconduct against Judge Griffith wasn’t dismissed with this much vigor.
Silberman was very open about his intentions. Srinivasan also included the following barb:
Following the Committee’s opinion, the complainant filed correspondence in which he stated, “[d]The complainant wanted to submit the Committee’s opinion again, stating that the Commission service by the subject judge constitutes judicial misconduct. However, the complainant stated that he did it “in expectation of you.” [i.e. the undersigned]Will dismiss [the]Reported[]The following are some of my observations. [Committee’s]opinion” would be “would give”. [the complainant]”A basis for appeal”, with the complainant saying that he wanted to eventually “challenge Committee on Codes of Conduct opinion” in front of “the Judicial Conference.”
He appealed. On November 18, Judge Silberman petitioned the Judicial Conference to review Judge Srinivasan’s decision.
Silberman’s letter was spicy. It reads almost like an opposing opinion. Let’s take a look at some highlights.
He first works with a Godfather classic reference.
I don’t criticize Judge Sullivan because he accepted the Judicial Nomination Commission post. My complaint, to paraphrase the Godfather’s famous quote: “It is not personal.”It’s only business“—Article III business.
Silberman also reminds everyone, secondly, that he wrote all of the panel opinions that were reversed. Morrison v. Olson. He alters Justice Scalia’s line “wolf” to great effect.
This complaint has been raised by me, but my concerns about the intrusion of Congress into Article III must be equally addressed to all Article III judges. (It might also be noted that I have an extremely long-term interest of seperating powers. Check outA Re-Sealed Case, 838 F.2d 476 (D.C. Cir. 1988), rev’d sub nom. Morrison v. Olson, 487 U.S. 654 (1988)). . . .
The statute implies separation of powers. It is possible for Congress to authorize judges in ways that are considered unethical by the judiciary. This would be an invasion of Article I authority and into Article 3.1 Justice Scalia pointed out that this is a “wolf.” [albeit a small wolf]It is like a wolf.” Morrison, 487 U.S.A. 699 (Scalia J., dissident).Like with Morrison Like other cases that involve the separation of power, this case has political implications. However, judges are required to address it regardless of congressional reactions or concerns.
Judge Silberman is third. Federalist 51 reference:
D.C. Judgeships can be very prestigious. They get the same pay as federal judges. An attorney who is interested in such an appointment must behave softly before appearing before a gatekeeper Judge, even when the client’s interests might necessitate a more assertive position. Vis a vis Judge. I was only responding to the Committee’s concern. The Committee said that lawyers are always trustworthy to pursue their client’s interests. This simple reasoning reminded me of the saying, “If people were angels no government would be needed.” Federalist No. 51.
Finally, he rebukes the committee harshly:
You should know that I challenge the opinion of the Committee. A classic example of a results-driven legal opinion. It is this reasoning that we use. It is so bizarre and unfathomableIt is difficult to believe that an Article III judge would have been able to write it. This opinion is very distinct from any of the other opinions by the Committee.This must be reversed if independence of judiciary is to remain protected.
The Judicial Conference is chaired by Chief Justice Roberts. It includes the Chief Judge of each circuit and the Court of ITC Chief Judge, as well as a District Judge representing each circuit. These are the current members. It is likely that Judge Silberman will win the appeal. Judge Sullivan forgets often which branch of government he is working for. He can be reminded by the Judicial Conference.