COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 59
Propriety of a Judge Giving Evaluation of Judicial Candidate to Screening
or Appointing Authority.
The receipt by many judges of requests for recommendations of suitable
potential judicial nominees from merit selection commissions has prompted
this advisory opinion. State judicial selection procedures vary, but this
opinion is limited to candidates for Article III judgeships.
Canon 2B of the Code of Conduct for United States Judges advises
judges against lending the prestige of judicial office to advance the private
interests of others and against conveying the impression that others are
in a special position to influence the judge. It seems reasonably clear
that a judge would be acting contrary to Canon 2B if he or she were to
initiate communications with an appointing authority for the purpose of
seeking, as a favor, the appointment of the judge's friend or acquaintance.
Making such a request might also transgress Canon 7C and its proscriptions
against engaging in political activity.
On the other hand, the Commentary to Canon 2B states that judges
"may participate in the process of judicial selection by cooperating with
appointing authorities and screening committees seeking names for consideration,
and by responding to official inquiries concerning a person being considered
for a judgeship." From this, it follows that there would be no impropriety
in a judge's answering a proper inquiry from an appointing officer with
respect to the judge's knowledge concerning the character and fitness of
a candidate for appointment to any public office, including that of judge.
Similarly, if the merit selection commission has requested that all candidates
submit a recommendation from a judge, and pursuant thereto the candidate
has requested a letter of recommendation from a particular judge, that
judge may respond.
In light of the Commentary to Canon 2B, the Committee also believes
that judges may -- when they are requested to do so -- communicate not
only their evaluations of candidates mentioned by the appointing authorities,
but also their recommendations of persons to be considered. By "appointing
authority" the Committee intends to include the President and Senators
and their selection committees or commissions. The cautions of Canon 2B
are consistent with judges providing their evaluations and recommendations,
when asked, based on their insight and experience to the end that the public
interest in a judiciary of quality and integrity be realized.
Therefore, not only may a judge properly answer inquiries concerning
a particular candidate, but a judge may also properly respond to requests
from appointing authorities and their screening committees for suggested
names. A judge may also respond affirmatively to requests from or on behalf
of the appointing authorities to evaluate candidates insofar as the judge's
knowledge of the candidates permits.
The strictures of Canons 2B and 7C should serve as guides to a judge
communicating any recommendation or evaluation. Any opinion the judge offers
should be and should appear to be directed only to factors relevant to
performance of the judicial office; the judge's views should be objective
and informative; the judge should avoid pleading for a candidate of the
judge's choosing in opposition to others under consideration; the judge
should not lend his or her name to any publicity campaign for any candidate.
April 16, 1979
Revised July 10, 1998