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Opinion

Opinion CJE Opinion No. 95-9

Date: 07/31/1995
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Sending Letter of Recommendation to Executive Council

You request an opinion concerning the propriety of sending a letter of recommendation to the Executive Council in support of a nominee for appointment to the judiciary.

In a previous opinion (CJE Opinion No. 94-1) this Committee addressed the issue of whether Canon 2(B) precluded judges from writing letters of recommendation. Within that opinion, the Committee examined, among other issues, the question of submitting letters of recommendation to the Judicial Nominating Council or the Executive Council on behalf of candidates for judicial office. The opinion cited and endorsed advice by the Advisory Committee on Codes of Conduct of the Federal Judicial Conference, the key portion of which is repeated here:

"The Advisory Committee accepts the premise that, as judicial selection processes become more institutionalized and with wider participation, judges have a responsibility to communicate their recommendations and evaluations to the appointive authorities -- the President and Senators -- and their selection committees or commissions. In other words the cautions of Canon 2B are entirely consistent with a positive duty of judges to communicate their evaluations based on experience to the end that the public interest in a judiciary of quality and integrity be realized." (Opinion 59 -- April 16, 1979)

The opinion also set forth several cautions universally applicable to all letters of recommendation written by judges, the most obvious being that a recommendation be based on one's own personal knowledge and observations. Furthermore, an association with a publicity campaign on behalf of any individual is precluded.

The nomination of any person for appointment to the judiciary carries with it the potential for political controversy. Your request indicates a clear recognition of the need to focus on the nominee's character, capabilities, and qualifications as opposed to the substantive merits of any social or political issue surrounding the nominee.

With that caveat in mind, the Committee concludes that a judge's written offer to the Executive Council of "objective and informative" knowledge pertinent to a candidate's suitability for appointment to the judiciary is not prohibited by the Canons. (1)

(1) Two members of the Committee excused themselves from participating in the Committee's consideration of this request.

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