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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I think there is a small error in your analysis. You say "[advocacy groups and law professors] remain free to file briefs. . . . Why not let retired judges do the same?"
No one has any right to file an amicus brief, and the decision of whether to accept them is purely discretionary. Outside of very weird circumstances (i.e. a judge who only let white people file amicus briefs or something similar), judges can accept or refuse amicus briefs for whatever capricious reasons they choose. I just don't happen to believe there are any standards for acecpting amicus briefs. No one has any right to file them, and no judge ever has any obligation to accept them.
If I was a judge, I would grant every motion for leave to file an amicus brief. But I understand why this panel chose not to accept this brief, and I don't think it was "wrong" for them to refuse.
As I read the Advisory Opinion, the concern isn't the one that Eugene notes above: that the brief will get more credit than it is due. The proffered explanation is that the use of the title "Judge" by a participant would have a corrosive effect on other participants' faith in the impartiality of the tribunal. If you don't think that is likely to harm the process in this particular setting, I'd agree with you.
But consider three things. First, in many other settings, the appropriate use of the title "Judge" by retired judges has been a traditional concern of ethics rules. Second, whether or not the Advisory Opinion makes a lot of sense in this setting, it says what it says. Third, the retired judges can easily participate in other ways, and even with the same substantive brief, so long as they omit the word "judge." So unless you believe that use of the word "judge" is essential to the proper consideration of their argument, nothing is lost by this ruling.
Capriciousness would probably be considered an abuse of discretion. But even where judges act within their discretion, the public is free to argue that the judges exercised that discretion poorly.
Let's say a lawyer wants to file an amicus brief in the DC Circuit's Guantanamo cases and he wants make a splash and get some press attention. Should he be able to get some former Supreme Court clerks together and submit the brief styled as "Brief of Former Supreme Court Law Clerks"?
And if that's okay, how about clerks for a specific Justice? Let's assume Kennedy will be the swing vote in a future Guantanamo case. Can our lawyer get some former Kennedy clerks to sign the brief and style it as the "Brief of Former Law Clerks to Justice Kennedy"? Would such efforts be appropriate if and when the case got to the Supreme Court, instead of just the DC Circuit?
I trust we would all agree that the answer in all of these cases is obviously no. It would be completely outrageous to do something like this, so much that I feel nervous even typing it out as a hypothetical question. But why? One reason is surely that we recognize the proper lowly status of law clerks; using the label would smell of some effort to hint at inside influence or knowledge where none exists.
But I think another reason is that there's something unseemly about trying to use a past affiliation with the decisionmaking authority to make your view seem more important that it is. Sure, you can use your current title, and insiders may know your past affiliation. But the idea of focusing on the past affiliation just seems really creepy and offputting. Even if it doesn't actually influence anyone, it's just a bad practice.
It's quite different with former judges, obviously. But I think the clerk example helps explain why the title of "former jurists" may seem offensive to the DC Circuit.
On the other hand, other past affiliation with a decisionmaking authority, such as one's experience as an actual judge, may well give you a particular perspective that might be of value to the court. Why is that any more "creepy and offputting" than, say, ex-Secretaries of States filing a brief based on their special expertise and the special perspective that it yields? (The former judges' expertise may be less useful, because it may be largely duplicative of the panel judges' own expertise, but that goes to weight of the brief and not its legitimacy / creepiness / offputtingness.)
The capricious refusal to accept amicus briefs would not be reviewable on appeal in any jurisdiction I'm aware of except perhaps in the single case where a judge impermissibly discriminated in refusing to accept a brief on racial grounds or something like that.
At the risk of incurring Prof. Volokh's an Prof. Kerr's wrath, I think law professors have a different view of the amicus brief than practitioners. There's just no right to file an amicus brief, and judges have every right to refuse them for (almost) any reason or no reason.
So I really don't agree that the "the public is free to argue that the judges exercised that discretion poorly" in this case, because I think the law leaves it completely up to the judge. I don't think you can say a judge is "wrong" to refuse an amicus brief any more than you can say your lunch partner is "wrong" for ordering a BLT because you prefer ham sandwiches. It's just no one's business why judges accept or refuse amicus briefs.
CLERK'S ORDER filed [896528] granting non-party motion to
allow amicus filed by Global Rights...
PER CURIAM ORDER filed [1005960] granting non-party motion
to allow amicus filed by OR Fed Pub Defender...
PER CURIAM ORDER filed [959292] granting motion of the
Washington Legal Foundation for leave to file a 15-page
supplemental brief in support of government respondents
regarding effect of Detainee Treatment Act of 2005;
Granting motion of British and American Habeas Scholars for
leave to file a 15-page supplemental brief as amici curiae
in support of petitioners adddressing section 1005 of the
Detainee Act of 2005; Granting motion on behalf of Legal
and Historial Scholars for permission to participate as
amici curiae and to submit an amicus curiae brief on behalf
of petitioners addressing the Detainee Treatment Act of
2005; Granting motion of the National Institute of Military
Justice for leave to participate as amicus curiae and to
file brief; Granting motion of the Federal Public Defender...
PER CURIAM ORDER filed [959347] denying motion of Senators
Lindsey Graham and John Kyl for leave to participate as
amici curiae in support of government espondents-appellees
regarding the effect of Detainee Treatment Act of 2005;
Denying motion of Senaor Carl Levin to participate as
amicus curiae in support of petitioners regarding Section
1005 of the Detainee Treatment Act of 2005
The Senators got shorter shrift than the judges:
Are legislators so routinely denied leave to file as amicus that it doesn't require explanation?
I don't quite "get" this. These judges filing the brief were actual judges at the same level as the current actual judges who will be doing the actual judging. What perspective would the former judges have that the current actual judges not have, especially considering they are all from the same system at the same levels reviewing the same cases in the same manner?
The secretaries of state and the legislators do, on the other hand, have a different perspective, as their duties and experience are not in judging cases, like the current actual judges and the retired judges, but rather in performing the responsibilities of the other branches of government, i.e. determining public policy as reflected in statute and spending, and formulating and conducting foreign policy.
Perhaps these retired judges feel that they know as much or more about legislating and conducting foreign policy as the the people whose actual constitutional duties are to do it.
Do you have any authority for that? I can see many reasons why people rarely if ever appeal such a decision (bigger fish to fry, hard to meet abuse of discretion standard, etc.). I can also see a bunch of procedural reasons that would make appeal difficult (lack of prejudice, lack of standing). But I don't know of any bar on appealing the decisions at the end of the case.
In any case, my main point stands. We can still criticize the judges' decisions.
The reason a party seeking to file an amicus brief could not appeal the denial (except in very narrow circumstances) is that the decision to accept an amicus brief is wholly up to the judge. Judges can reject amicus briefs for any reason or for no reason. Because a judge can do it for absolutely no reason, there's no way the discretion could ever possibly be abused. If a judge can refuse to accept an amicus brief for any reason or no reason, he cannot possibly "abuse" his disretion in the matter.
I believe it harms the public faith in the judicial system and makes people think this is a system of, by, and for insiders to allow former judges to use those titles while acting as advocates for parties.
Perhaps the nature of an amicus curiae brief is sufficiently removed from representation of clients that the rule should be changed to make an exception here, but it has not been. A 3-judge panel lacks the authority to make such an exception to the rules. I therefore agree with the majority ruling.
Nick
NickM: There are no "rules" here from which a three-judge panel is deciding whether "to make ... an exception." We're talking about an Advisory Opinion, which is at most persuasive, not binding, precedent; an Advisory Opinion that focused on the typical fact situation in which retired judges are acting as lawyers, and didn't discuss amicus briefs filed on the retired judges' behalf; and on top of that an Advisory Opinion that might itself, in its last clause, have excepted this sort of situation.
Nick