Trump Should Fire This Rogue Panel That Controls DC Judges

Over the summer, a young DOGE staffer was viciously attacked by two D.C.-area teens. The perpetrators went before the D.C. Superior Court and were given probation and sent home. This is par for the course in the District of Columbia courts, which are a perennial mess. They’re a mess in large part due to far-left judges who are selected through a system that disempowers the president who appoints them. While this is a serious problem, there are some ways around it.

For example, earlier in the year my friend, Zach Smith, and I wrote about how Attorney General Pam Bondi should seek to remove one of these left-wing judges, Todd Edelman of the Superior Court, because he was illegitimately reappointed to that position by the D.C. Committee on Judicial Tenure and Disability (CJTD) after the U.S. Senate had refused to confirm him to the D.C. federal district court under then-President Joe Biden. While Judge Edelman was the example we picked because his situation was both timely and egregious, a core problem plaguing D.C. courts is the CJTD itself.

By advising and binding the president on the exercise of his powers under the appointments clause, the CJTD is exercising executive power and must therefore be accountable to the president. Luckily the Trump administration has a ready tool at its disposal if it wants to circumvent the CJTD and upend the unconstitutional monstrosity that is the reappointment process in the D.C. courts: The president can fire its members.

The CJTD is made up of seven members. Under the current statutory scheme, two are appointed by the Board of Governors of the D.C. Bar. Two are appointed by the mayor. One is appointed by the D.C. city council. One is appointed by the chief judge of the U.S. District Court for the District of Columbia. And only one is appointed by the President of the United States (a seat held by the conservative stalwart Tom Fitton). One of the members until relatively recently was Dr. Patrick Jackson, husband of Justice Ketanji Brown Jackson. I say until recently because mere weeks after Zach and I urged the president to take a look at the judicial-reappointment process in D.C., noting that Dr. Jackson’s presence on the CJTD would likely cause his wife to recuse in any litigation, he resigned not two years into his six-year term.

Evaluating D.C. Judges

Under D.C.’s Home Rule, the CJTD evaluates D.C. judges as their 15-year statutory terms expire and rates them “well-qualified,” “qualified,” or “unqualified.” If a judge is well-qualified, he’s automatically reappointed and the president is informed of this fact. If he’s only qualified, then he can go through advice and consent again at the pleasure of the president. If he’s unqualified, then the president can’t nominate nor the Senate confirm him.

D.C. Superior Court judges are appointed by the President of the United States under federal law. This means that the CJTD members are in the federal executive business of making appointments: They can advise the president on judicial candidates, require some to be nominated, and even forbid their nomination by the president. 

The fact that the CJTD participates in the exercise of the president’s appointment power puts them in a materially different position from D.C. judges themselves. D.C. judges are probably safe from presidential removal because the Puerto Rico oversight board case, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, contained dicta whereby Justice Stephen Breyer said that D.C. officials, like territorial officials, aren’t officers of the United States for appointments-clause purposes. The argument went that Congress is entrusted with creating local offices in the territories and D.C. and, as long as the offices have “primarily local duties” —  as opposed to primarily federal duties — they aren’t federal officers for appointments clause purposes. Even if this weren’t the case, the Supreme Court in the recent Slaughter v. Trump oral argument about the Federal Trade Commission made it pretty clear that it has no intention of making Article I judges (like those of, say, the Tax Court) subject to presidential removal at this time.

Wielding Executive Power

But the CJTD is different. Yes, D.C. judges may wield local power, but they are nominated, appointed, and confirmed via the Article II process and have been since the District of Columbia Organic Act of 1801. Indeed, the case that gave us judicial review — Marbury v. Madison — involved the delivery of one William Marbury’s commission as a D.C. justice of the peace following his confirmation by the Senate and appointment by President John Adams. This process is inarguably federal. Unlike D.C. judges themselves, who undertake the local activity of hearing cases in the D.C. courts, CJTD members are directly engaged in the federal activity of assisting the president in deciding whom to appoint — up to and including forbidding or requiring appointment in some cases.

Because the CJTD is wielding the power of the executive, it should report to the executive. As Justice Breyer said in his Clinton v. Jones concurrence, the president “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it.” This is because the Constitution “makes a single President responsible for the actions of the Executive Branch.” More recently, Judge Greg Katsas on the D.C. Circuit explained in the case of the fired National Labor Relations Board and Merit Systems Protections Board members, that officers who wield “significant executive power” must be subject to removal by the president. If the nomination and appointment of a judge under Article II of the Constitution isn’t significant executive power, I don’t know what is.

Given that the CJTD is exercising federal, executive power, the president should fire them — and use his appointment-clause power to replace them with members who are willing and able to take his instruction in carrying out the executive appointment of D.C. judges. 

How to Proceed

If the CJTD members refuse to comply with their termination, the president should ignore them and carry on his executive appointment function with the new, legitimate CJTD members he appoints under his Article II authority. He should also seek the rescission of any congressional appropriation that could be claimed by the old, illegitimate CJTD members (Congress sends the commission money every year, and could specify that funding goes only to members validly appointed by the president). Why should Congress pay for an institution that demands unsupervised executive power in a way that undermines the Senate’s own advice-and-consent prerogatives?

Firing the CJTD would short-circuit the entire unconstitutional reappointment process. Its rules require four members to constitute a quorum, so if the president fires them, they can’t transact business and reappoint judges.

Over his presidential term, because a CJTD without a quorum can’t reappoint judges, this will give Trump seven more vacancies on the D.C. Superior Court and three more vacancies on the Court of Appeals. This would transform the Court of Appeals to one where Trump has appointed six of its nine active judges. This would be a sea change with potentially profound effects given the supervisory role the Court of Appeals plays in the D.C. Bar. It’s only possible, though, without the current retention system, and, therefore, only possible if Trump fires the CJTD.

President Trump should fire the CJTD as soon as practicable. It’s the easiest thing he can do to make D.C.’s courts great again.

Michael A. Fragoso is a fellow at the Ethics and Public Policy Center and a partner at Torridon Law PLLC. He was previously chief counsel to Sen. Mitch McConnell and negotiated the Border Act of 2024.