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Appointment of a Federal Judge to the 

United Nations Delegation

If this were a matter of first impression, appointing a federal judge to be a representative of the United 

States to the General Assembly of the United Nations would be inconsistent with the constitutional 

doctrines of separation of powers and independence of the judiciary. However, because of the 

longstanding practice of appointing federal judges to temporary office in the Executive Branch, and 

the absence of any explicit constitutional text, it cannot be maintained that such an appointment 

would be unconstitutional.

August 5, 1976

MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL 

TO THE PRESIDENT

This is in response to your inquiry relating to the appointment of a judge of the 

U.S. Court of Appeals1to be a representative of the United States to the General 

Assembly of the United Nations.

Section 2(c) of the United Nations Participation Act of 1945, Pub. L. No. 79-

264, § 2(c), 59 Stat. 619, codified at 22 U.S.C. § 287(c) (1976), provides that the 

President shall appoint by and with the advice and consent of the Senate not to 

exceed five representatives of the United States to attend a specified session or

sessions of the General Assembly of the United Nations. Pursuant to section 3 of 

the Act, 22 U.S.C. § 287a (1976), those representatives “act in accordance with the 

instructions of the President transmitted by the Secretary of State.”

Even though the Constitution does not contain for judges any express prohibition from simultaneous service in the Executive Branch similar to that established 

for congressmen under Article I, Section 6, Clause 2, I would nonetheless advise, 

if this were a matter of first impression, that an appointment of the sort suggested 

would be inconsistent with the constitutional doctrines of separation of powers and 

independence of the judiciary. However, in addition to the absence of any explicit 

prohibition, there is a constitutional practice of appointing federal judges to 

temporary office in the Executive Branch which goes back to the diplomatic 

service rendered by Chief Justices John Jay and Ellsworth during the administrations of Presidents Washington and John Adams. The last instance was the

appointment of District Judge Boldt to the position of Chairman of the Pay Board 

in 1971.2 Because of this longstanding practice, and the absence of any explicit 

 

1 We have been informally advised that the judge in question is in active service.

2 For other instances, see, e.g., International Military Tribunal, 40 Op. Att’y Gen. 423 (1945); 

Nominations of Hon. Marvin Jones and Hon. John Caskie Collet, S. Exec. Rep. No. 80-7 (1947), 

reprinted in Independence of Judges: Should They Be Used for Non-Judicial Work?, 33 A.B.A.J. 792 

(1947); Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 704 & n. (1956) (“Mason”).
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constitutional text, I think it cannot be maintained that such an appointment would 

be unconstitutional.

During this century, however, it has been asserted with increasing frequency 

that, while the practice of appointing judges to temporary positions in the Executive Branch may have been justified by the conditions prevailing during the early 

years of the Republic, “the propriety of the practice should be examined anew if 

the integrity of the judiciary in American life is to be preserved.” S. Exec. Rep. 

No. 80-7, supra note 2, at 2. That report cites the following undesirable aspects of

such appointments:

(1) Reward may be conferred or expected in the form of elevation 

to a higher judicial post.

(2) The judicial and executive functions may be improperly

merged.

(3) The absence of the judge from his regular duties increases the 

work load of the other judges of the court, if any, and may result in 

an impairment of judicial efficiency in the disposition of cases.

(4) Nonjudicial activities may produce dissension or criticism and 

may be destructive of the prestige and respect of the Federal judiciary.

(5) A judge, upon resumption of his regular duties, may be called 

upon to justify or defend his activities under an Executive commission.

Id. at 6 (footnotes omitted).

3

In 1958, Chief Justice Warren, in a letter addressed to Congressman Keating, 

commented adversely on a proposal to have a justice of the Supreme Court serve 

on a commission to determine presidential disability:

MY DEAR MR. CONGRESSMAN: During the time the subject of inability of a President to discharge the duties of his office has been 

under discussion, the members of the Court have discussed generally, but without reference to any particular bill, the proposal that a 

member or members of the Court be included in the membership of a 

Commission to determine the fact of Presidential inability to act.

 

3 For Chief Justice Stone’s rejection of President Franklin D. Roosevelt’s offer to serve on a commission to study the rubber supply during World War II, and for his attitude on Justice Jackson’s 

service on the Nuremberg Tribunal, see Mason, supra note 2, at 709–20.
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395

It has been the belief of all of us that because of the separation of 

powers in our Government, the nature of the judicial process, the 

possibility of a controversy of this character coming to the Court, 

and the danger of disqualification which might result in lack of a 

quorum, it would be inadvisable for any member of the Court to 

serve on such a Commission.

I realize that Congress is confronted with a very difficult problem, 

and if it were only a matter of personal willingness to serve that anyone in the Government, if requested to do so, should make himself 

available for service. However, I do believe that the reasons above 

mentioned for nonparticipation of the Court are insurmountable.4

This trend culminated in 1973 in the approval by the Judicial Conference of the 

United States of Canon 5(G) of the Code of Judicial Conduct of United States 

Judges:

Extra-judicial appointments. A judge should not accept appointment 

to a governmental committee, commission, or other position that is 

concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality 

on ceremonial occasions or in connection with historical, educational, and cultural activities.

Commentary: Valuable services have been rendered in the past to the 

states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of 

conferring these assignments on judges must be reassessed, however, 

in light of the demands on judicial manpower created by today’s 

crowded dockets and the need to protect the courts from involvement 

in extra-judicial matters that may prove to be controversial. Judges 

should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary.

Since the duties of the United States Representative to the General Assembly of 

the United States are not of a historical, educational, or cultural nature, Canon 

5(G) precludes a federal judge on active duty from accepting that position. It is far 

 

4 Reprinted in Presidential Inability: Hearings Before the Subcomm. on Constitutional Amendments 

of the S. Comm. on the Judiciary, 85th Cong., 2d Sess. at 14 (1958). Nevertheless, Chief Justice Warren 

accepted the position of Chairman of the Commission to investigate the assassination of President 

Kennedy.
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from clear what sanctions are available for violation of the Judicial Conference’s 

Canons. Some judges have openly refused to comply with those portions which 

relate to required financial disclosure—with apparent impunity except for

publication of their names by (I believe) the Administrative Office of the United 

States Courts. Nonetheless, it does seem inadvisable to place the President in the 

position of prompting action which is in violation of the Canons.

Finally, I wish to recall the fact that the Executive Branch has taken a rather 

firm stand of late on various matters bearing upon the principle of separation of 

powers. I refer in particular to our opposition to disapproval of executive action by 

one-house or concurrent resolutions, and congressional participation in the

appointment of executive officers. It would invite attack to combine such a pristine 

view of separation vis-à-vis the Congress with a latitudinarian stance insofar as the 

courts are concerned.

ANTONIN SCALIA

Assistant Attorney General

Office of Legal Counsel