Could a Justice Kagan Write a Letter of Recommendation for Miguel Estrada?

Sen. Sessions asked Elena Kagan if she thought Miguel Estrada was qualified to sit on the circuit court (Bush 1 had nominated him but the nomination died in the Senate). Kagan said he was qualified even for the Supreme Court. Asked if she would write a letter supporting an Estrada nomination, she said yes. Could she? The Code of Conduct for US Judges says:

"A judge should not lend the prestige of the judicial office to advance the private interests of others..."

Could a judge or justice write in support of judicial nominee? For example, could Justice Stevens have written a letter to the Judiciary Committee urging Kagan's confirmation? And if he could, could a different justice write to the committee and urge a no vote?

I realize the Code of Conduct does not literally bind the Justices but the questions are worth asking.

Comments

[Monroe Freedman]

I think that it's very bad policy for judges to write recommendations for or against colleagues or would-be colleagues. E.g., when Alito was nominated, colleagues on the 3d Cir. wrote (as I recall) a joint recommendation. Imagine if a colleague had not joined in, and Alito had returned to the 3d Cir. Or if a judge or justice failed to recommend a candidate who was then confirmed to join that court.

[L. Trotsky]

On the Congressional/SCOTUS level, it seems to raise separation of power issues as well, i.e. a sitting Justice is writing to advocate a legislative act (adoption of the committee's recommendation on the nominee).

[Law school grad]

Such recommendations could result in awkward situations.

On a much smaller scale, I know a number of local government commissioners (e.g. city and county commissions) who will not openly endorse or oppose candidates in races for other seats on their commissions. But other candidates do, especially at the state and national levels. And somehow these elected officials usually learn to get along once they get in office. Since federal judges and justices normally serve for a long time, I would think that they would have an even greater incentive to be collegial once they are sworn in than our elected officials.

From my limited experience as a campaign volunteer, I agree with the above posts that it is not wise to endorse or oppose the election or appointment of future colleagues, but some officials choose to do so anyway.