I appreciate Orin's point; and perhaps judges indeed ought to take retired judges' briefs with a grain of salt. But I just don't see this as a justification for a rule rejecting any briefs signed by retired judges who say they are retired judges (and I think Orin doesn't, either). Even if, at worst, retired judges' briefs are unlikely to be any more useful than briefs filed by advocacy groups or law professors or anyone else, those other groups remain free to file briefs (though subject to the risk that the briefs will be taken with a grain of salt). Why not let retired judges do the same?
One possible reason would be if we thought that retired judges' opinions would improperly carry more weight than the others' opinions. But surely the D.C. Circuit panel wouldn't be duped into somehow overestimating the brief's merits. (As I noted in the earlier post, perhaps a jury would wrongly give more credit than is due to arguments made by a lawyer who's address as "Judge Jones" as opposed to his adversary "Mr. Smith"; yet that's hardly a concern for an amicus brief like this one.) They can evaluate perfectly well briefs filed in the name of Professors Tribe, Dershowitz, and Sullivan. They can presumably equally evaluable a brief filed in the name of Dean Ken Starr, though it doubtless won't be lost on them that he was once a D.C. Circuit Judge himself. What's the problem with letting Judges Hofstetler, Mikva, Wald, and the others note their past professions, and leaving it up to the panel to read the brief and decide what weight to give it, just as it does with any other amicus brief?
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