COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 64

Employing a Judge's Child as Law Clerk.

Our advice has been requested on whether it is proper for a federal judge to employ as law clerk the son or daughter of another federal judge. We have considered instances of judges on the same court, related courts, and courts in different districts or circuits.

At the outset, we note that 28 U.S.C. § 458 expressly prohibits some appointments within the court system. It provides:

No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge of such court.

The term "court" is generally construed so that each district court and each circuit court of appeals constitutes a different court. See 28 U.S.C. § 451 (defining courts). Accordingly, the statutory provision, if applicable, would not apply to other than judges of the same court. This conclusion makes it unnecessary to resolve the question of whether the position of law clerk is "any office or duty of the court" as defined in the statute.⁽¹⁾ As discussed herein, we conclude that whether or not section 458 is directly applicable, both the canons and the congressional policy underlying section 458 would in any event counsel against a judge hiring as a clerk the son or daughter of a judge who sits on the same court. In the case of judges sitting on different courts, such hiring is permissible, subject to appropriate ethical safeguards.

Same Court

Section 458 evinces a congressional policy that the judiciary should be kept free from the practice, or the appearance, of nepotistic hiring. Canon 3B(4) goes beyond the statutory ban in that it proscribes "favoritism," a broader term than nepotism. It provides:

A judge should not make unnecessary appointments and should exercise that power only on the basis of merit, avoiding nepotism and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.

Hiring the son or daughter of a colleague raises two principal concerns. First, a judge should not use the hiring prerogative to dispense government offices for his or her personal advantage or that of a colleague. This would be an improper use of judicial office in violation of Canon 2 and Canon 3B(4) of the Code of Conduct. Second, employment of a related law clerk might undermine the impartiality, or give the appearance of that fault, when the employing judge and the judge who is a parent of the law clerk work closely with each other on the same court. This would contravene Canon 3 of the Code of Conduct.

We think that to avoid the fact or appearance of the improprieties noted above, and to give a broad and generous application to the congressional policies underlying section 458 regardless of its applicability to the specific position of law clerk, it is improper for a judge to hire as law clerk a son or daughter of a judge of the same court.

For purposes of this opinion and related nepotism/favoritism rulings, magistrate judges are properly regarded as serving on the same court as district judges in their district. Likewise, bankruptcy judges are properly regarded as serving on the same court as district judges in their district. Thus, it is ordinarily improper for a district judge to hire the child of a magistrate or bankruptcy judge in the same district, and vice versa. Similarly, in the case of bankruptcy and magistrate judges in the same district, we advise against one judge's hiring the child of another.

Separate and Unrelated Courts

At the other extreme lies the case presented when a federal judge employs the son or daughter of another federal judge who sits on a court that is a separate entity and that has no jurisdictional or hierarchical relation to the court of employment, e.g., the District of Idaho and the District of Maine, or the District of Idaho and the Court of Appeals for the First Circuit. Although the danger of favoritism in the dispensation of government offices is not altogether absent in such cases, it is neither as compelling nor as apparent as where the judges sit as colleagues. The rights and legitimate expectations of the prospective clerk, moreover, should not be ignored in this instance. The children of judges already bear some of the sacrifices of the offices held by their parent. It is unfair, we think, to visit upon them a blanket disability from seeking an employment which is often the reward of academic excellence. Also it appears that any threat to impartiality is entirely absent. Thus we see no impropriety in hiring the son or daughter of a judge of a different court with no jurisdictional relationship or connection to the court of the employing judge. The judge who is a parent should not, of course, use his or her judicial or personal position to influence the selection of the clerk.

Related Courts

When the judges involved sit on courts with a jurisdictional connection, e.g., a court of appeals and a district court within the same circuit, the Committee believes it is not appropriate to prohibit all hiring of sons or daughters of judges within the same circuit but on different courts.⁽²⁾ The Committee advises that each judge should consider the facts of the individual case, with reference to the factors discussed below.

The first consideration is whether hiring the applicant will constitute favoritism, in fact or appearance. The hiring judge should make an appointment only with confidence that the fact of the applicant's family connections is not a factor in the decision to hire, and that no appearance to the contrary will arise. In this regard the hiring judge should examine the personal and formal contacts he or she has with the parent of the applicant. Ethical questions cannot always be answered by per se rules and in this instance, as in others, the decision must of necessity be that of the judge. See Advisory Opinion No. 11 (standards for recusal where friend is counsel in the case).

As for the necessity of maintaining the fact and the appearance of impartiality, it is unacceptable for a reviewing judge to rely upon the assistance of a clerk who is the son or daughter of a judge who decided the case in the lower court. We have previously recognized that:

Among judicial employees, law clerks are in a unique position since their work may have direct input into a judicial decision. Even if this is not true in all judicial chambers, the legal community perceives that this is the case based upon the confidential and close nature of the relationship between clerk and judge.

Advisory Opinion No. 51.

The Committee does find, however, that the remedy of excluding the related clerk from participation in any discussion or research involving the case is a sufficient safeguard against a threat to impartiality so that a general prohibition against hiring the clerk is unnecessary. This is the same rule that the Committee has applied when a case is argued by a firm in which the clerk's spouse is employed. See id.

When a circuit judge hires a district judge's child: A circuit judge, before making the decision to hire a clerk who is related to a district judge whose work will be reviewed, should consider whether it will be necessary to insulate the clerk from case participation with frequency, and if so, whether such insulation will disrupt orderly procedures within the reviewing judge's chambers or court.

If the hiring judge has considered these factors and finds no ground for concern either that favoritism will occur or that impartiality or orderly procedures will be undermined, a circuit judge may, with propriety and without violating Canons 2 and 3 of the Code of Conduct, hire as law clerk the son or daughter of a judge from a district court even if there is a jurisdictional relation between the courts. The same considerations govern a circuit judge's decision whether to hire the child of a bankruptcy or magistrate judge in the same circuit.

When a district judge hires a circuit judge's child: Ordinarily the need for the district judge to isolate the law clerk will arise only infrequently; that is, only when a case is returned by that circuit judge to the district judge. However, the more significant problem lies in the fact that a circuit judge should ordinarily recuse in appeals of cases that were decided by the district judge at the time that the circuit judge's child was a law clerk in the district judge's chambers. The circuit judge should also consider recusing in appeals from the employing district judge that arise while the child serves as a law clerk, whether or not the cases were decided by the district judge during the child's clerkship. Most circuits are sufficiently large that it might not be overly burdensome for a circuit judge to recuse in all cases coming from a particular district judge during that time. However, it would mean that the circuit en banc court would be one judge short with respect to appeals from the decision of a district judge who hired as a law clerk the child of a circuit judge.

In making a hiring decision in this situation, the district judge should consider, in addition to the factors discussed above (pertaining to favoritism and impartiality), that hiring the child of a circuit judge in the same circuit will necessitate the latter's recusal in many cases. The same considerations govern a bankruptcy or magistrate judge's decision whether to hire the child of a circuit judge in the same circuit.

CONCLUSIONS

A. The Committee concludes that to avoid the fact or appearance of nepotism or favoritism in hiring, a judge should not hire as a law clerk a son or daughter of a judge serving on the same court.

B. The Committee finds no impropriety in hiring a son or daughter of a judge sitting on a different court that has no jurisdictional connection with the court of the employing judge.

C. The Committee concludes that a judge may hire as a law clerk the son or daughter of a judge of another court that has a jurisdictional connection with the court of the hiring judge, with the exercise of care and discretion. If the hiring decision will not be influenced by the applicant's family connections, or reasonably appear to be so influenced, if impartiality can be preserved with efficiency by excluding the clerk from any connection with the cases decided by his or her parent, and if disruption and undue disqualification can be minimized in the chambers of both the hiring and the parent judges, then the hiring presents no conflict with the objectives of Canons 2 and 3 of the Code of Conduct.

August 25, 1980
Revised May 31, 1996
Reviewed January 16, 1998

1. ¹ A Comptroller General's opinion, 15 Comp. Gen. 765 (1936), advises that a law clerk occupies a position personal to the judge, and that this employment is distinct from "any office or duty" of the court as the phrase is used in the statute. The Committee expresses no opinion upon the correctness of the Comptroller General's statutory interpretation.

2. ² For simplicity's sake, we discuss the situation of court of appeals and district court judges. The same principles apply, however, to the judges of other courts in a hierarchical situation, such as the judges of the Court of International Trade, the Court of Veterans Appeals and the Court of Federal Claims, all of whose decisions are reviewed by the Court of Appeals for the Federal Circuit.