For more than two decades, U.S. District Judge Emmet G. Sullivan has served on a local board that recommends judicial nominees to the president for openings on the D.C. trial and appellate courts.
But last year, Sullivan’s work on the judicial nomination commission drew criticism from a fellow judge in Washington, Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. He said judges should not play such a role in recommending nominees to the president and accused Sullivan of unethical conduct for participating in a process that “exercises enormous political power.”
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The formal misconduct complaint, made to the chief judge of the D.C. Circuit, followed an unusual year-long effort by Silberman to see Sullivan removed from his appointed role. Sullivan, in response, sought guidance from the federal judiciary’s committee that oversees judges’ conduct.
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The dust up between two well-known, outspoken judges who work in the same federal courthouse in Washington became public Monday when Sullivan notified his colleagues that the committee determined his work is permitted and consistent with guidelines for judicial conduct.
“You are using your expertise to evaluate and recommend candidates for judicial office; you are not lobbying the appointing authority or publicly opining on the qualities of any candidate,” the Committee on Codes of Conduct said in an advisory opinion dated Nov. 5, a copy of which was reviewed by The Washington Post. “Having considered the concerns raised about your participation on the Commission, and evaluated these concerns and your ethics inquiry under the relevant Code provisions, we cannot conclude that your service on the Commission is contrary to the Code.”
The D.C. attorney general, Sullivan’s fellow commissioners on the judicial nomination board and a Stanford Law School ethics professor agreed with the committee’s conclusion.
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The advisory opinion notes that a small number of judges on the 15-person committee disagreed with the panel’s advice, finding that the nominations work can be political and “may compromise the independence of the judiciary by enmeshing it with other branches of the federal government.”
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The committee’s opinion and supporting documents provide insight into the inner workings of the federal court system’s efforts to address questions about judicial ethics. The controversy, laid out in a series of memos dated between August 2020 and last Friday, is also an unusual example of a judge accusing a colleague of unethical behavior in a courthouse known for collegiality.
Sullivan declined to comment. Silberman, whose complaint is pending before the head of the D.C. Circuit’s Judicial Council, said in an email Monday that it would not be appropriate to comment while his complaint is under review.
In one memo, Silberman said his claim against Sullivan was “not personal, it is systemic” and that he does not fault the judge for initially accepting his appointment to the commission in 2001.
Before filing the complaint in August, however, Silberman called for Sullivan to resign and took up the issue with the highest levels of the judiciary, asking for an opinion from the Judicial Conference overseen by Chief Justice John G. Roberts Jr. The executive committee of the conference declined his request in March.
D.C.’s local court system is unique because of the capital city’s governance structure set up nearly 50 years ago by Congress. Judges who serve on the D.C. Superior Court and D.C. Court of Appeals are in essence federal officials — nominated by the president and confirmed by the Senate — sitting on the equivalent of a state court bench.
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When vacancies arise, the nomination commission recommends to the president a slate of three candidates. If the president fails to select a nominee, the commission itself can choose a candidate for the Senate to confirm.
The seven-person commission is required by law to include a current or retired District Court judge among its members.
Sullivan, now the commission’s chair, was selected for the role by the late Chief Judge Norma Holloway Johnson and reappointed by three subsequent chief judges.
A nominee of President Bill Clinton, Sullivan previously served as a judge on both the D.C. Superior Court and D.C. Court of Appeals, and is perhaps best known for presiding over many high-profile political dramas. He helped shore up the government’s obligation to disclose evidence in criminal trials after the botched prosecution of former senator Ted Stevens (R-Alaska), and presided over the Trump administration’s abandoned prosecution of former national security adviser Michael Flynn.
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It is unclear what prompted Silberman’s complaint against Sullivan. During the summer of 2020, when Silberman first raised concerns, Sullivan was immersed in an extraordinary legal battle at the D.C. Circuit after he refused to immediately go along with the Trump administration’s request to drop the Flynn case. Sullivan hired a private attorney to defend the court’s authority to investigate whether dismissing the case was in the public interest.
The full D.C. Circuit sided with Sullivan, upholding his authority to scrutinize the Justice Department’s decision to end its case against Flynn. Two judges dissented, saying Sullivan had compromised his impartiality “beyond repair” by seeking review by the full court and hiring a lawyer to represent him.
Silberman, a nominee of President Ronald Reagan, did not participate in the Flynn case. He is renown in conservative circles and was honored last month by the Antonin Scalia Law School with an award named for Justice Clarence Thomas. The Wall Street Journal recently called him the “most influential judge never to have sat on the Supreme Court.”
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When Silberman initially asked for an advisory opinion from the Committee on Codes of Conduct, he said the process of selecting judges is inherently political and should not involve other judges, documents reviewed by The Post show. Silberman copied Sullivan on the request.
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“I am not alone among D.C. federal judges” with similar concerns, he wrote, without naming the other judges.
The panel voted and declined to weigh in, telling Silberman in a January letter that its long-standing policy is to provide advice to individual judges about their own conduct rather than opining on the actions of other judges.
Silberman appealed to the executive committee of the full Judicial Conference, overseen by Roberts, which considered his request in February before declining to take a position.
Silberman followed that with the formal judicial misconduct complaint to D.C. Circuit Chief Judge Sri Srinivasan who leads the D.C. Circuit’s Judicial Council. Silberman cited potential separation of powers problems and suggested that Sullivan’s role means he has “an inherently improper influence” over the lawyers appearing in court before him who may one day seek judicial appointment.
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In October, Sullivan asked the conduct committee for advice. Sullivan said he intended to settle the matter to ensure that other federal judges can continue to serve on the nomination commission going forward.
D.C. Attorney General Karl A. Racine (D) and Sullivan’s counterparts on the nomination commission said the judge’s service is justified because it is authorized by federal law.
“We see no way in which a federal judge’s service on the [judicial nomination commission] threatens ‘public confidence in the integrity, impartiality, or independence of the judiciary.’ In fact, in the nearly 50 years that the JNC has operated with a federal judge as one of its seven appointed members, we are not aware that any person has ever raised any such concern, much less provided evidence to support such a suggestion,” the commission told the judiciary’s conduct committee.
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Separately, Chief Judge Beryl A. Howell, who serves on the D.C. Circuit’s Judicial Council, sought the advice of an ethics professor about how to handle Silberman’s complaint. Stanford Law Professor Nora Freeman Engstrom, who teaches legal ethics, noted that many state judicial selection systems rely on commissions that include active judges as members.
Engstrom also pointed to the judicial code that says judges may accept appointments to governmental committees if the position concerns “the law, the legal system or the administration of justices, or if the appointment of a judge is required by federal statute” as it is under D.C.’s structure of government set up by Congress in 1973.
The professor concluded that Sullivan’s service on the commission is consistent with the code of conduct for judges and that Silberman’s complaint is “entirely without merit.”
Carol D. Leonnig contributed to this report.