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.)
