Can a person who has an attorney-client relationship with the US Government (typically, an licensed lawyer employed by the govt) ethically become a judge in the US?

If so, how is the apparent conflict of interest resolved?

A few possibilities I can think of:

  • the lawyer was never entrusted with any confidential information
  • the lawyer, as judge, routinely recuses himself from matters where conflict of interest can be reasonably perceived.

If not, what prevents the appointment ?

A few possibilities I can think of:

  • The lawyer's ethical standards prevent him from applying for the positions.
  • The person who nominates avoids making controversial nominations, on moral grounds.
  • The confirmation committee is required by some law to reject such nominations.

I assume that the lawyer does all that is in his power to become judge, including resigning or retiring from his job.

1 Answer 1


Yes. For example, immediately prior to her appointment to the Supreme Court of the United States, Justice Elena Kagan was the Solicitor General of the United States.

Wikipedia notes, citing Olivia Fitzpatrick, "When do Supreme Court Justices recuse themselves from cases?":

Because of her service as solicitor general, Kagan recused herself from 28 out of the 78 cases heard during her first year on the Court to avoid conflicts of interest.

It is not rare for a judge to have previously been a lawyer for the government. In 2021, 44.20 percent of the federal judiciary had previously represented the government in in-court litigation (Clark Neily, "Are a Disproportionate Number of Federal Judges Former Government Advocates?", The Cato Institute (2021)).

  • Thank you for the insightful answer. Would you kindly address whether there are roadblocks to appointing what would become an unproductive judge, like judge Kagan in your example? There cited blog post mentions Thurgood Marshall, another Solicitor General. Such appointments seem to be the exception, rather than the norm, so I am guessing there must be roadblocks. Commented Sep 20, 2023 at 20:16
  • @JaredoMills Probably a majority of state court judges were previously government lawyers and there is no roadblock to appointing a solicitor general as a SCOTUS judge (a post colloquially called the "Tenth Justice"). The conflicts of interest disappear after a year or two. There are special, fairly lenient rules for conflicts of interest for former government lawyers.
    – ohwilleke
    Commented Sep 20, 2023 at 20:34
  • 1
    @JaredoMills "Such appointments seem to be the exception, rather than the norm, so I am guessing there must be roadblocks": how many solicitors general seek judgeships, though? Maybe the main such roadblock is a lack of desire to become a judge. The first solicitor general became a prominent officer in the executive branch, eventually running (unsuccessfully) for president. The seventeenth became a member of Congress.
    – phoog
    Commented Sep 20, 2023 at 23:41
  • 1
    @JaredoMills The primary issue is convincing POTUS to nominate a person. U.S. Senate refusal to approve a POTUS nomination for SCOTUS was vanishingly rare before the 1980s and you can still probably count on your fingers the number of times a SCOTUS nominee's nomination has been voted down or the nomination was withdrawn. There is no doubt that it is an ordeal, but the ordeal is really not meaningfully different for a government lawyer than anyone else. Indeed, anyone with a prior U.S. Senate confirmed office has an edge because some Senators already said the person was O.K. for another job.
    – ohwilleke
    Commented Sep 21, 2023 at 0:13
  • 2
    @JaredoMills The short answer is that there are no legal hurdles to appointing a judge who might be less productive because of conflicts. The hurdles you're discussing are largely political in nature and probably better addressed with a separate question on politics.SE.
    – bdb484
    Commented Sep 21, 2023 at 13:27

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