Much consternation has followed an opinion released March 19 by Judge Laurence H. Silberman of the U.S. Courts of Appeals for the D.C. Circuit in which he went far beyond the facts of the case to rail against purported left-wing media bias and call for the reversal of a landmark U.S. Supreme Court precedent on press freedom.
But there’s little any of us who were aghast at the opinion can do about it.
On the one hand, that’s probably for the best. We want our judges to be independent of political and public pressure, and the most consequential response—impeachment and removal—should be reserved for the most egregious misconduct. On the other, we don’t want judges shamelessly shoehorning partisan talking points into our body of case law, even in dicta, with complete impunity.
What might be done boils down to a handful of formal and informal processes—each with benefits and drawbacks.
Formal Complaint Process
First, there’s the formal complaint process established in federal law. Hundreds of complaints are levied against judges every year, with the vast majority filed without merit by disgruntled litigants. The benefit of a formal complaint, which here would be filed with D.C. Circuit Chief Judge Sri Srinivasan, is that it creates a paper trail.
By rule, the court must acknowledge receipt and give the complaint a case number. Though more than 99% of the complaints related to rulings are dismissed, the dismissals are handed down via official orders that are often made public.
In practice, this strategy mostly serves as a PR ploy. You may recall that any time U.S. Supreme Court Justice Brett Kavanaugh’s conduct is raised, liberals are quick to point out that “all 83 complaints against Kavanaugh were dismissed”—“83” because several dozen people took it upon themselves to file that many formal complaints, not because he necessarily did 83 complaint-worthy things. Fair or not, the number raises eyebrows.
Move Case to En Banc
A second option is even more subversive. The judges of the D.C. Circuit, having read the Silberman opinion, could call for the case to “go en banc” to be re-argued in front of the entire court, not just a three-judge panel. In their opinions afterward, the additional judges could respond to the Silberman screed.
Frankly, the two other judges who sat with Silberman on the case, Srinivasan and Judge David S. Tatel, themselves could have responded more strongly in their majority opinion, or they could have asked Silberman in the moment to tamp down the rhetoric. (They either failed or what Silberman submitted was, in fact, tamped down.)
Silberman might also try to revise his opinion before it’s formally adopted in the Federal Reporter in the coming weeks. Yet moving a case to en banc simply to denigrate an opinion on the losing side would flout the court’s rules and exhaust additional time and resources.
Informal Complaint Process
Finally, there’s the option I endorse: the D.C. Circuit’s informal complaint process, via its Advisory Committee on Judicial Conduct, which receives and transmits any concerns raised by bar members to the chief judge anonymously.
In practice, it acts as an intermediate step before the formal complaint process is undertaken that can study potential issues without, and excuse the metaphor, making them a federal case. Committee members approaching Silberman, asking if he’s OK, and talking through what brought about this unprofessional and inappropriate opinion might be the most effective way to ensure that it doesn’t happen again—at least in the D.C. Circuit.
Sadly, though, the Silberman opinion feels like the tip of an iceberg that extends across the entire federal judiciary.
With the recent erosion of Senate norms that incentivized bipartisanship—namely the 2013 and 2017 terminations of a 60-vote threshold for votes on lower court and Supreme Court nominees, respectively, coupled with the 2017 end of “blue-slips” for circuit court nominees—more baldly partisan judges writing more bluntly partisan opinions will become more common. The blue-slip policy is where a senator from a judicial nominee’s home state gives an opinion on the nominee.
Steps to Improve Accountability
Absent a reestablishment of these norms, a few tactics might improve accountability.
First, the formal complaint process shouldn’t end once a judge retires. Judges Alex Kozinski, Mary Trump Barry, and several others in recent years were credibly accused of gross misconduct, yet each retired before the complaints were adjudicated, meaning the public never learned the extent of their misdeeds. A complaint filed against Silberman today would similarly be dismissed if he, at age 85, retired tomorrow.
Second, just as circuit chief judges are supposed to identify complaints when evidence of possible misconduct comes to light, they should be more proactive in counseling judges who are behaving in what appears to be a partisan manner.
Finally, the judiciary’s policymaking body, the Judicial Conference, should create a single, searchable website where the public can examine all the formal complaints filed and adjudicated in a given year, and every circuit should have an Advisory Committee on Judicial Conduct.
As has been pointed out, much of what Silberman wrote is not so different from what he’s said in speeches or among certain company. But with his personal politics bleeding into his work product, his colleagues and the judiciary as a whole should take the opportunity to remind him that judicial opinion writing isn’t the same as op-ed writing.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal courts.