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NYT on Judicial Amicus Brief Rejection:

The N.Y. Times reports on the D.C. Circuit's rejection of an amicus brief filed by retired judges. The article suggests politics played a role in the rejection.

David B. Rivkin, who was an official in the administrations of Ronald Reagan and the first President George Bush, said he detected a political undertone.

"It certainly tells you," Mr. Rivkin said, "how at least some of the D.C. Circuit judges feel about the anti-Bush-administration judicial activism by their former colleagues."

The two judges who rejected the brief, Sentelle and Randolph, were Republican appointees, while the dissenting judge, Rogers, and some of those on the amicus brief were Democratics appointees. One of the brief's signatories suggested personal animus explained the decision.

[Former Judge Abner J.] Mikva said the rejection of his brief was motivated by personal animus, not politics. "It's not political at all," he said in an interview. "This was clearly aimed at me."

The judges in the majority, Mr. Mikva said, were furious with him because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.

There's no question that many federal judges object to Mikva's support of a campaign against privately funded judicial education seminars, particularly given some of the inaccurate and outrageous claims made in the course of that campaign. That said, I find the idea that either Judge Sentelle (for whome I clerked) or Judge Randolph (who was a professor of mine) would base their decision on such sentiment [to be ridiculous]. Correctly or not, I think it clear that Judges Sentelle and Randolph [sincerely] believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case [or public perception thereof].

Experts in legal ethics were divided over yesterday's ruling. Ronald D. Rotunda, a law professor at George Mason University, said it was an unexceptional application of a sensible policy.

"There is no particular reason why former judges should be able to leverage their titles in litigation," Professor Rotunda said.

Stephen Gillers, a law professor at New York University, disagreed. "It's more than petty," Professor Gillers said of the brief's rejection. "It's unnecessary and insulting."

He added that the objection was an empty formality, as former judges remain free to submit briefs if they omit references to their prior judicial service.

Whatever its basis and wisdom, yesterday's order probably indicates that a ruling in the underlying case is near. In a 1994 libel case, a panel including Judges Mikva and Wald rejected a supporting brief that Kenneth W. Starr, a former judge on the court, had tried to submit on behalf of several news organizations. The panel decided the libel case the next day.

UPDATE: I edited the post above to fix an incomplete sentence and make my point more clear. The added portions are in brackets.

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views. I've written about this issue quite a few times, most recently in this article for NRO.

Let me make clear that I am not endorsing the panel's decision to reject the brief. While I understand why a court might be wary of briefs that are submitted for political reasons, I am unsure whether Judges Sentelle and Randolph were correct on the merits. I am concerned about whether this decision has sufficient precedent. I also find Steve Lubet's suggestion in the comments that any rejection of the brief should have been without comment to be reasonable as well. My point is that I believe both judges made a sincere and principled judgment on the merits, and were not motivated by a desire to get back at Judge Mikva.

FURTHER UPDATE: Stephen Gillers fleshes out his position in a comment below. It is much more informative than the NYT soundbite. Beldar has some thoughts as well.

NYUer:
I think the NYT has Gillers on speed dial for whenever they need an objective looking source that reliably bashes Republicans.
12.30.2006 1:03pm
frankcross (mail):
I think it clear that Judges Sentelle and Randolph believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case.

I just don't understand this. How would their status as former judges influence the case? It's like Sentelle and Randolph declaring they don't trust themselves, which seems bizarre. Moreover, the removal of the word "judge" would not eliminate this influence, my guess is that Sentelle and Randolph know which "Abner Mikva" filed the brief.

Of course, it's also a little bizarre that Mikva would file a brief to judges who he believes have antipathy for him.
12.30.2006 1:25pm
Justin (mail):
NYUer, what are you talking about?

It must have taken them a long time to find someone willing to support the decision. Let's just say that Ronald D. Rotunda is *not* on speed dial.
However, he wrote several editorials in November 2000 denouncing Gore's legal strategy, and then wrote a bunch more articles in 2003 attacking the filibuster. Always useful, to have someone so willing to be on the side of the new concept when Republicans come out with bizarre legal theories.
12.30.2006 1:37pm
Justin (mail):
Frank,

Mivka's name was meant as a political statement, on what is a legal argument that is highly politically charged. I suspect Mikva knows that Sentelle and Randolph are going to rule in favor of the administration, and he's making a public display of their fallacy.

Which, of course, is perhaps why they nixed the amicus curae, but their legal grounds were, shall we say, shaky.
12.30.2006 1:39pm
Justin (mail):
That said, I find the idea that either Judge Sentelle (for whome I clerked) or Judge Randolph (who was a professor of mine) would base their decision on such sentiment. Correctly or not, I think it clear that Judges Sentelle and Randolph believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case.

I assume you simply forgot the rest of that first sentence, but assuming that you would use a pejorative word to describe Mikva's belief, I think you are right that is incorrect. I also think your last sentence is a big stretch.

The most likely reason that the amicus curae was rejected was not because the judges were using their status as former judges in an effort to influence the case, but because they were using their status as former judges to embarrass Sentelle and Randolph for abdicating their judicial role (which they almost certainly will) in the name of deference.

There's also a strong argument that its simply out of political spite. The argument that they were doing it to influence the CASE is very weak - unless, as mentioned above, you think Sentelle and Randolph are putty in Mikva's legal hands.

I also think its somewhat hypocritical for you to attack Mikva for his allegations, and, without even a hyperlink, make harsh allegations against him (specifically "particularly given some of the inaccurate and outrageous claims made in the course of that campaign").

I am more than willing to defend Sentelle's judgment as simply wrong rather than malicious, and I know that if my former Judge ever was involved in some sort of allegation of poor decisionmaking I would want to defend him, but your personal defense here simply goes way too far, and assumes way too much.
12.30.2006 1:46pm
Jeremy T:
"He added that the objection was an empty formality, as former judges remain free to submit briefs if they omit references to their prior judicial service."

No, they don't. Judges are under no obligation to accept any amicus briefs. Ever.
12.30.2006 1:55pm
Steve Lubet (mail):
Judges Sentelle and Randolph could have rejected the former judges' brief without comment, as they did in the case of the Senators' briefs. Instead, they chose quite publicly to base the rejection on a highly questionable reading of an advisory opinion which many distinguished former judges -- of all political backgrounds -- routinely ignore.

In that light, it is fair to wonder whether Sentelle and Randolph intended to send an unspoken message.
12.30.2006 2:06pm
Byomtov (mail):
"He added that the objection was an empty formality, as former judges remain free to submit briefs if they omit references to their prior judicial service."

No, they don't. Judges are under no obligation to accept any amicus briefs. Ever.


Maybe, but the original, rather silly, reason given for the rejection was the use of the title, "Judge."
12.30.2006 2:07pm
Justin (mail):
That's not exactly true, Jeremy T. They are expected to follow an "arbitrary and capricious" standard, and as such their own past actions can (at least ethically) bind them going forward. Someone used the example before of "only accepting amicus briefs from white people," which explains the point.

Now, how reviewable that obligation is, particularly when the appeal is already in front of the Court of Appeals, is another question.
12.30.2006 2:21pm
Tom Tildrum:
Certainly, Mikva's comment kills any argument that his brief was offered on the basis of his judicial expertise, as opposed to his political chops.
12.30.2006 2:52pm
Neal Goldfarb:
Part of the context in which the rejected brief (and the order rejecting it) have to be considered is that it's quite common for amicus briefs to be titled with by describing rather than naming the amici. E.g., "Amicus Brief of 25 Economists . . .," "Amicus Brief of Law Professors . . .," "Amicus Brief of Legal Historians . . .," etc.

There have also been briefs in the Supreme Court with titles like these:
Amicus Curiae Brief of 271 United Kingdom and European Parliamentarians in Support of Petitioner[From Hamdan v. Rumsfeld][link]
Brief Amicus Curiae of Law Professors, Former Legal Advisers of the Department of State and Ambassadors, Retired Judge Advocates General and Retired Military Commanders, and Other International Law Specialists in Support of Respondents[from Rasul v. Bush][link]
Brief Amici Curiae of Former U.S. Government Officials in Support of Petitioners [from Rasul] [link]
Amicus Curiae Brief of 271 United Kingdom nd European Parliamentarians in Support of Petitioner [from Hamdan][link]
So right off the bat, there's nothing unusual about titling a brief, "Amicus Brief of Former Federal Jurists."

It's also not at all uncommon for former federal judges to file amicus briefs. Quite a few such briefs have been filed in, e.g., the recent spate of detainee cases in the Supreme Court. While some of these are titled by giving the names of the amici (invariably with each name preceded by "The Honorable"), they state in the "Interest of Amici" section that the amici are former federal judges, and some even refer to the amici by the title "Judge" (e.g., "Judge Nathaniel R. Jones served as a judge on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002").

Moreover, some briefs have explicitly been titled as briefs on behalf of "former federal judges."

So the D.C. Circuit's rejection of the Mikva et al. brief is certainly contrary to the precedent (such as it is) in this area.
12.30.2006 2:58pm
Jeremy T:

That's not exactly true, Jeremy T. They are expected to follow an 'arbitrary and capricious' standard, and as such their own past actions can (at least ethically) bind them going forward. Someone used the example before of 'only accepting amicus briefs from white people,' which explains the point.

Now, how reviewable that obligation is, particularly when the appeal is already in front of the Court of Appeals, is another question.



Ha! I used the "only accepting amicus briefs from white people" example. I was explaining that that's about the only time a refusal to accept an amicus brief would ever be reviewable.

There is no obligation on the part of a judge to accept any amicus briefs or even to have a reasonable basis to refuse to accept an amicus brief. Amicus briefs can be rejected for any reason or no reason. There can be no such thing as an "abuse of discretion" when there are (practically) no limits to the discretion to begin with.


Moreover, some briefs have explicitly been titled as briefs on behalf of "former federal judges."

So the D.C. Circuit's rejection of the Mikva et al. brief is certainly contrary to the precedent (such as it is) in this area.


The fact that some courts accept amicus briefs from former federal judges is not in any sense "precedent." Courts are free to accept or reject amicus briefs for any reason.

The problem here is that the commenters and even the Conspirators seem to think that there is a "legally correct" answer to whether or not this D.C.C.A. panel should have accepted this brief. There is no such legally correct answer, because the decision to accept an amicus brief is and has always been in the sole discretion of the court and there are absolutely no limits to that discretion, outside (perhaps) of my rather absurd hypothetical about a judge who decides to accept amicus briefs based on race or other protected class.
12.30.2006 3:18pm
MnZ (mail):
Given the increases in people's life spans, we have a increasing pool of retired judges. This issue will probably come up more and more.
12.30.2006 3:18pm
Public_Defender (mail):
This decision just deprives the two judges of whatever wisdom might be in the brief. If the briefs aren't persusive, then denying the motion is superfluous because Sentelle and Randolph could just ignore it.

Ironically, the denial just made the brief more influenctial. I bet that the clerks and the dissenting judge have read the brief (which is freely available on the internet). If the case gets to the Supreme Court, the retired judges will be allowed to submit their brief. Also, thanks to Sentelle and Randolph, the brief has received public attention it never would have received.

This case also highlights a potential problem (or maybe improvement) that the Internet creates. Parties and members of the general public can back door arguments to a court by posting them on the Web. Courts read and cite blogs, and bloggers have every right to post their opinions about ongoing cases.
12.30.2006 3:36pm
Anderson (mail) (www):
Certainly, Mikva's comment kills any argument that his brief was offered on the basis of his judicial expertise, as opposed to his political chops.

Care to explain that inference, Mr. Tildrum?
12.30.2006 3:37pm
John Steele (mail):
MnZ, your point is one of the stated rationales for the Advisory Opinion itself.

By the way, Profs Gillers and Rotunda have indeed publicly disagreed on a number of legal ethics issues over the years, and quite often across a "left-right" divide, but that's no reason to personally attack them. So they differ and they may have political outlooks on life. So what? Attack their arguments.

Fwiw, the Advisory Opinion says that the reason to forbid the use of the word "judge" is because of its psychological effect on other participants, who will "lose a degree in of confidence in the integrity and impartiality of the judiciary." It's not because the judges will actually gain any advantage. Your views may differ.

Finally, this backlash shows that if the majority's concern really were just the Advisory Opinion the more prudent course would have been to deny the motion but expressly invite the amici to resubmit the brief after editing it to comply with the Advisory Opinion.
12.30.2006 3:51pm
K:
I would leave it to the judge. He/she can accept briefs or not.

The practice does lend itself to former judges (or others such as law professors) being paid to file the briefs. In effect becoming secret attorneys backing one side.

I don't think it unreasonable to ask those filing briefs to indicate whether they receive any compensation for doing so. And, if so, the rough nature of same. How hard is that?
12.30.2006 4:02pm
dearieme:
"Ronald D. Rotunda": what were his parents thinking of?
12.30.2006 4:04pm
David M. Nieporent (www):
The most likely reason that the amicus curae was rejected was not because the judges were using their status as former judges in an effort to influence the case, but because they were using their status as former judges to embarrass Sentelle and Randolph for abdicating their judicial role (which they almost certainly will) in the name of deference.

There's also a strong argument that its simply out of political spite. The argument that they were doing it to influence the CASE is very weak - unless, as mentioned above, you think Sentelle and Randolph are putty in Mikva's legal hands.
How... interesting as a demonstration of human psychology. Justin posits that the brief was submitted for a completely improper purpose, and yet somehow manages to place the blame for "political spite" not on those who acted this way, but on the judges who rejected it.


The Posner opinion has it exactly right: too many people think the purpose of amicus briefs is to put themselves on the record as having stated an opinion. The idea that as former federal judges they have a special interest in this case is absurd. They have the same interest as any other citizen. (Do they have some special expertise? No. This is not a question about the administration of courts. And of course, if it were, it's highly unlikely they would have non-superfluous information to impart to a panel of judges.)
12.30.2006 4:09pm
Jeremy T:

This decision just deprives the two judges of whatever wisdom might be in the brief. If the briefs aren't persusive, then denying the motion is superfluous because Sentelle and Randolph could just ignore it.


Then why is there even a rule that you have to get leave of the court to file as an amicus? If denying a motion for leave to file an amicus brief is "superfluous," then why don't the rules just say that any person can send in a brief without any sort of judicial approval?
12.30.2006 4:23pm
Justin (mail):
" Justin posits that the brief was submitted for a completely improper purpose."

How do you figure? Any public figure, even Judges, are allowed to ignore the fiction that there is no political aspect to a case. You do not think that when the Administration files an Amicus Brief on an abortion case, or when a right to life organization files an amicus brief calling for an end to Roe v. Wade when they know that reception to that call is unlikely, is political? Amicus Curae briefs are ALMOST ALWAYS political, because by definition, the filing party does not have a personal interest in the outcome to the case.

Furthermore, even though I think the right move would be to accept (or reject) all amicus curae briefs on the topic that come from a sufficiently prominant source, that was *not* the grounds that were used. The Judges' brief, unlike the Senators' brief (and you don't think that one was political?) was singled out for special treatment, and that treatment was what we are discussing. If Sentelle and Randolph deny the AC brief under a theory that is proper and evenhanded, I guarantee you that there are not multiple VC Contributors discussing the point (none, I might add, taking your position, as much as you love to call me a troll).
12.30.2006 4:24pm
neurodoc:
In a 1994 libel case, a panel including Judges
Mikva and Wald rejected a supporting brief that
Kenneth W. Starr, a former judge on the court, had
tried to submit on behalf of several news
organizations. The panel decided the libel case the
next day.

Am I the only one who thinks that last tidbit noteworthy here?
12.30.2006 5:47pm
Justin (mail):
neurodoc:

No. If they "decided" the libel case the next day, you would have to assume the opinion was already voted on, written, published, and citechecked, and was simply on panel or circuit review, depending on the DC Circuit's procedure.
12.30.2006 5:59pm
Justice Fuller:
Gillers is a hack. I don't think I have ever read a quote from him that wasn't either accusing a conservative of an ethical breach or defending a liberal against such charges.

Does anyone know if gillerws has ever stated that a liberal was being unethical, or that a conservative was doing nothing wrong?
12.30.2006 6:40pm
David M. Nieporent (www):
How do you figure?
I "figure" because the purpose of an amicus brief is to present legal arguments to the court that have not been adequately presented by other parties for one reason or another. It is not to "embarrass" judges because you think they're going to make the wrong decision. That's an Op/Ed, not an amicus brief. It's okay for the party filing the amicus brief to be interested in the case because of its political views; it's not okay for the party to file the amicus brief for the purpose of playing politics. An anti-abortion group should file an amicus brief calling for an end to Roe if that is relevant to the case and nobody else is adequately representing that position.

Your view of the role of amicus briefs is confused. How "prominent" the person submitting the brief is should be entirely irrelevant. Again, that's an Op/Ed consideration. Cases are supposed to be decided by legal argument, not the identity of the party or the number of people who support it. How would a litigant feel about the legal system if it seemed that he lost because the other side had more "prominent" people supporting it? (Of course, prominent people can always support or oppose a legal position, but that's outside the courtroom, not inside it.)

I don't know what you mean by "singled out for special treatment"; the Senators' brief (actually, two different sets of Senators' briefs) was rejected. Theirs was almost certainly political -- although Graham, as a former JAG officer, might even have had some relevant contribution -- and the court treated it exactly the same as the former judges' brief.

As for "the grounds that were used," of course the argument I provide is not the grounds that were used. You're the one who posited that it was filed for an improper purpose; the panel did not make such an accusation. I was simply pointing out that if your theory were right, then it takes absurd hyperpartisanship on your part to criticize the panel, rather than the retired judges.
12.30.2006 6:53pm
Justin (mail):
I'm not confused, I am just experienced enough to know that legal theory and legal practice often diverge, and that you cannot always use one to judge the other. Get to court more, and stop trying to think the worst of everyone who votes differently than you. What I was saying was hardly controversial.
12.30.2006 7:09pm
Justin (mail):
Without doing research, the Microsoft Judge (Penfield Jackson?) and the Lamberth Native American scandal both come to mind, where Gillers agreed that the Judge's actions had violated conduct. Truthiness strikes again.
12.30.2006 7:17pm
Justice Fuller:
Justin,

I appreciate your self-confidence, but I have never heard Judge Jackson described as a conservative judge. He isn't known as being ideological one way or the other.
12.30.2006 7:29pm
Justin (mail):
Justice Fuller,

Whether that is true or not, in the context of the Microsoft litigation Jackson was taking the liberal position. Nor does the fact that Lamberth (a pretty liberal guy from what I hear) was appointed by Reagan change the fact that his criticisms were directed at the Bush Administration for being "racist."
12.30.2006 7:49pm
Justice Fuller:
Justin,

It can be hard to pin ideological labels on district court judges, so let me refocus the inquiry: Has Gillers ever said anything positive about the ethics of Justices Scalia, Thomas, Roberts or Alito, and has he ever said anthing negative about the ethics of Justices Stevens, Ginsburg, Souter, or Breyer?
12.30.2006 8:05pm
David M. Nieporent (www):
Get to court more, and stop trying to think the worst of everyone who votes differently than you.
Really really really black pot to kettle: you're black.


Justice Fuller: Gillers was the media's go-to guy to bash Scalia on the duck-hunting trip, and also when he skipped CJ Roberts' swearing-in ceremony because he was teaching a CLE class. (To be fair, the NYT simply has Gillers on speed dial for everything; he's evidence as much of reporter laziness as anything.)
12.30.2006 8:10pm
stephen Gillers (mail):
The ethics opinion the majority cites is aimed at the dangers when one lawyer in a contest, trial or appeal, is a former judge and his former title is used, even if not before a jury. That's the example offered in the opinion. It can appear to the litigant whose lawyer is not a former judge like the opposing lawyer has special sway. The opinion does not address the current situation and so far as I know, no one has argued otherwise.

Two other facts which, I think, are important: first, the government, the adverse party here, had no objection; and (second) this is not a private dispute. On the latter fact, it would likely be unacceptable for former judges to submit an amicus brief on behalf of a private party in a private lawsuit, using their honorifics, and perhaps, most times, even without doing so since the bench will likely know who they are.

In this case, as in those Judge Rogers cites, and in others I've quickly discovered (see below) including from the 7th and 10th circuits, government has been the adversary and the cases addressed broad and consequential policy matters (such as whether a 50 year sentence for a minor drug crime violated the 8th Amendment).

In the 7th circuit case, the court (I think en banc) rehearing the case said it had the "benefit" of the views of former federal judges. That's the gracious response.

So if the adverse party does not object, what is the value the majority seeks to preserve? Could it be be some perception that the public (not the parties) will be disconcerted if the amicus brief is accepted while identifying the former judges as former judges but not otherwise? Is this the kind of silly formalism to which judicial ethics has sunk or is there another explanation for the Sentelle-Randolph refusal to consider the arguments in the brief?

Here are three cases in which former judges, identified as such, submitted amicus briefs (in addition to the two Judge Rogers cites):
1. This one is a SCT case on biased use of peremptories:

Miller-El v. Dretke
545 U.S. 231, 125 S.Ct. 2317
U.S.,2005.

An amicus brief was filed on behalf of, among others, three former federal judges including Adams and Gibbons. I think the brief appears at 2004 WL 1988105


2. This 7th circuit case may no longer be good law for unrelated reasons, but the court accepted the identified amici.

Lindh v. Murphy
96 F.3d 856
C.A.7 (Wis.),1996.

"David E. Jarvis, Jeffrey O. Davis, Mitchell S. Moser, Quarles &Brady, Milwaukee, WI, George H. Kendall, New York City, for Nicholas J. Bua, Marvin E. Frankel, Susan Getzendanner, John H. Gibbons, A. Leon Higginbotham, Shirley M. Hufstedler, George N. Leighton, Philip W. Tone, Harold R. Tyler, Jr., Amici Curiae."

""We set this case for reargument before the full court in order to decide whether the new provision applies to pending cases and, if it does, how it affects them. We invited and received supplemental briefs from the parties, and we have had the benefit of briefs from the American Bar Association and a group of former federal judges as amici curiae."


3. U.S. v. Angelos
433 F.3d 738
from the Court's opinion (10th circuit, case of high public interest):


"Angelos, joined in an amicus brief filed by a group of individuals, including former federal judges, United States Attorneys General, and high-ranking United States Department of Justice officials, contends the district court erred in concluding that the fifty-five year sentence mandated in his case by § 924(c) did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. We review de novo the question of whether a criminal sentence violates the Eighth Amendment. E.g., United States v. Fernandez, 388 F.3d 1199, 1258 (9th Cir.2004); United States v. Myers, 280 F.3d 407, 416 (4th Cir.2002).
12.30.2006 8:18pm
stephen Gillers (mail):
Ah, Justice Fuller, we remember what we want to remember (or perhaps you haven't read all my quotes).

I was an outspoken critic of President Clinton during Whitewater/Lewinsky, including in several NY Times OpEds.

I've defended Scalia in newstories where my view has been sought. I did so, by way of recent example, when he was criticized for siting on Hamdan after speaking about his son in Iraq. I got several calls about that. I criticized Ginsburg when it came out that her husband owned stock that should have required her recusal (he then sold it). So far as I can recall, I've never been asked about Souter, Breyer, or Stevens. (Exception: I was asked about Breyer sitting in Booker, but he had previously consulted me on the same question before he sat, before it was a case before the court; then when I was asked by the press, he authorized me to go public with my advice - that he could sit - and this information appeared in Tony Mauro's column.)

I often have no idea about the ideology of lower court judges about whom I am asked. I've both defended and criticized Kozinski, of whom I'm quite fond. But he's probably not liberal or conservative, just brilliant and independent.

I defended Alito's on the Vanguard issue and then new facts emerged that led me to be critical in some regard. I critiicized Leo Sarokin's comments in the tobacco case, the one that led to his recusal, and I count him as a liberal. I criticized Calabresi's political talk though I'm not sure that made the press.

I'd be happy to say the same thing about any justice who went duck hunting in a small group with the vice president under the same circumstances as Scalia did.

During Whitewater/Lewinsky, I often supported Ken Starr, whom I know and like, and also criticized him. I got innumerable calls about Starr - he was clearly a press target - and not only did I defend him, but I did so emphatically because I often though the press was going way overboard.

Innumerable times (in the many hundreds) across the last 25 years I've been critical of liberals, defended conservatives. I often never learn when my quotes make the paper and often, I assume, they do not. I'm pretty sure reporters call to see if I'm critical and conclude that if I (or others) are not, there's no story.

If a liberal court acted the same petty and wrongheaded way on an amicus brief submitted by former conservative judges (see my post above), I'd say exactly the same thing. I assume Rotunda would, too. I have no doubt about that at all.

Long ago, I decided that my loyalty to my subject - legal ethics - was far more important than my legal ideology or politics. I've never said anything I don't believe and would not say regardless of the identity of the judge or lawyer.
12.30.2006 8:47pm
Justin (mail):
David, I'm going to stop on this point, because I don't want it to get too personal, but you've got a reputation of being a RABID partisan on a BASEBALL discussion group, and for BOTH politics AND baseball. I know I look like a reflexive partisan (despite the fact that I've both defended and criticized Sentelle on this very subject on this blog), but maybe that's because when you're a hammer.....
12.30.2006 9:03pm
Justice Fuller:
Professor Gillers,

Thanks for your reponse. Glad to hear that. I think my perspective reflects the fact that I have only been following these issues for the last five years or so; thus I have seen lots of your criticism of Scalia and Roberts and Alito, but I missed your defense of Ken Starr (who I think acted outrageously and in a terribly partisan way, but what do I know) in the 1990s.
12.30.2006 9:25pm
Justice Fuller:
I should also add, I apologize for using the "hack" label. That was very wrong of me. One more thing for my New Years resolutions.
12.30.2006 10:01pm
Brian G (mail) (www):
If the judges want to have a say on issues, they should run for office. The judges were correct to reject their briefs.
12.30.2006 10:16pm
Jeremy T:
Well now Adler's talking about that he doesn't know whether the judges were "right on the merits." Look, IT'S IMPOSSIBLE TO BE WRONG ON THE MERITS WHEN IT COMES TO REFUSING OR ACCEPTING AMICUS BRIEFS. It is and has always been a matter of pure, unvarnished, unreviewable judicial discretion.

It does not surprise me that law professors who often write and sign amicus briefs have come to think there is some "right" to file them, but there is not. I will say that I feel like this debate is taking place in bizzaro world, where people who should know better don't have any understanding at all of how appellate courts deal with amicus briefs.
12.30.2006 10:41pm
John (mail):
1. If I had submitted this brief as an interested citizen, it likely would have been rejected.

2. These retired jurists have no status, or interest in these proceedings, that I lack. They are just private citizens now.

3. I do not believe any argument is advanced that is not already advanced in other filings in the case.

4. Notwithstanding their actual current status, you can be sure that all publicity around this--whether the brief had been accepted or not--will emphasize their former status as judges, as if to give some special importance to their views.

5. It follows that they are just using the amicus process to further a political/publicity stunt, and not to bring anything new to the party.
12.30.2006 10:49pm
David M. Nieporent (www):
I just want to be clear that when I said that the New York Times was lazy for always calling Prof. Gillers, that was a criticism of the Times, not Gillers. There's nothing wrong with expressing one's opinion to the media when asked, nor are his opinions always (or even usually) wrong. I just think a media outlet shouldn't outsource all its opinions on a particular topic to one person.

(And no, it isn't a remedy to say, "Okay, maybe this time we ought to find a conservative who disagrees with him to give us a quote.")
12.30.2006 11:29pm
David M. Nieporent (www):
Oh, and Justin, just to be accurate: I'm a rabid ideologue, not partisan.
12.30.2006 11:31pm
John Steele (mail):
I appreciated reading Professor Gillers’s longer explanation. But I don’t consider his reading of the Advisory Opinion the only reasonable interpretation of the Advisory Opinion and don’t even consider it the best reading.

The Advisory Opinion has three parts: a concern, an explanation of how the concern arises (which Professor Gillers calls an “example”), and a conclusion (“judges should ensure that [x]”). The problem is that the conclusion is broader than the example. The Advisory Opinion could have limited itself to the example -- where the former judge is a party’s lawyer. Or it could have pronounced a flexible standard (i.e., “don’t use the word ‘judge’ in any situation where there is a substantial likelihood of [the concern arising]”. It did neither.

It pronounced an easily grasped rule, with an "unless" exception that to my knowledge no one argues is applicable here. The rule squarely covers the use of the word judge in the amicus papers filed in the litigation:


“Judges should ensure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.”



So, there it is. Even if the rule is broader than the example, the rule doesn't provide a "case by case" balancing test or other means of limitation. And because it focuses narrowly on the use of the word “judge,” it gives former judges plenty of other ways to make their real point -– so long as their real point is not about invoking their status.

Professor Gillers ask what purpose is served by the rule. Again, the stated idea is that other participants will lose confidence in the court if former judges get to tout their status as “judges.” That may be a “silly” concern to some. But if you simply read the comments at this site, you will find several comments that articulate that very concern without sounding the slightest bit silly to my ears. Nor, apparently, to the ears of the Judicial Conference that that authored the opinion.

And this “what purpose is served?” question is two-sided. Even if we ignored the pronounced rule, given that the former judges could file a substantively identical amicus brief, we have to ask, “what purpose is served by insisting that former judges be allowed to invoke that status before the court?” Why can’t they just file the same brief and refer to themselves as “private citizens who are deeply concerned about the Rule of Law”? If the whole point is that their brief is more effective once they invoke their status as former judges, you’ve proven the need for the rule. If you deny that invoking their status increases the effectiveness, you’ve proven that there’s no need for them to invoke the status.

Finally, it doesn’t appear that in the cases cited by Professor Gillers the court dealt with the Advisory Opinion at all. Presumably it never occurred to anyone. But now that we know that the Judicial Conference has spoken, and now that we’ve read a straight forward rule, we ought to follow the opinion or have it amended.

The whole situation could have been avoided if the majority had had the common sense to have a clerk pick up the phone and ask the amici to read the Advisory Opinion, edit the brief (which would have taken less than an hour), and refile, or denied the motion but offered to accept the brief nunc pro tunc after some simple editing.
12.31.2006 12:39am
John Steele (mail):
By the way, I should add that in light of what I consider to be unfair attacks on Professors Gillers and Rotunda, I didn't mean my reference to "left-right" viewpoints to suggest in the slightest that their views are anything less than their seriously considered views on the merits.
12.31.2006 12:46am
Visitor Again:
Whether or not this particular amicus brief should have been rejected, it's pretty clear that the amicus curiae concept has been abused more and more frequently over the past few decades.

My notion of a proper amicus curiae application has always been that the amicus has something special to contribute to the controversy that might aid the court in resolving the matter or at least in resolving it more knowledgeably or more intelligently. Perhaps the amicus has special experience or expertise in the area. Or perhaps the amicus will put forward arguments or consequences or authority that the parties have either overlooked or raised in an inadequate manner.

From what I've seen over the years, however, amicus briefs are often filed without regard to these concerns and, in fact, in disregard of them. For one thing, they are often filed merely because of public relations concerns. For example, Unorthodox Church A seeks to file an amicus brief in a case involving Unorthodox Church B merely because B went to bat as amicus previously in a case involving A. This phenomenon will sometimes involve something on the order of 30 or 40 religious organizations filing amicus briefs, not just one or two. And it's not only churches, of course, but all kinds of business, social and political organizations and so on that do likewise. You rub our back and we'll rub yours.

Amicus briefs also are commonly filed simply to put an organization on record as supporting one side or the other. Apparently they are viewed as essential to establishing the credibility of the group's commitment on an issue and as important historical proof of the filing organization's position. I've even seen one-sentence amicus curiae briefs submitted, along the lines of Organization X supports the position of Organization Y.

Amicus briefs are, I suppose, another cash cow for many lawyers. Is that why they are so commonly accepted although they really have nothing helpful to say?

Not that I really care because I don't have to read many of them. But if I did have to, it'd tick me off if they had nothing new or different to say.

On the last amicus brief I wrote, probably 25 years ago, the lawyer for the party we were supporting before the U.S. Supreme Court swiped several paragraphs from the draft I had prepared and reproduced them verbatim in the party's opening brief, without bothering to tell us. The amicus brief was filed as drafted, and it would have appeared to the Court or anyone else that read the briefs that the amicus brief had merely reproduced a huge section of the party's opening brief, the opposite of what actually occurred. When I discovered this "plagiarism" and, in a mild fury, telephoned the party's lawyer to complain, she said, "Hmmm, I knew I'd seen that somewhere else before."
12.31.2006 2:56am
Public_Defender (mail):
Then why is there even a rule that you have to get leave of the court to file as an amicus? If denying a motion for leave to file an amicus brief is "superfluous," then why don't the rules just say that any person can send in a brief without any sort of judicial approval?

That would make more sense. Deciding whether to accept an amicus brief just gives judges one more motion to read and one more entry to sign. They should just skip that step. Then, they could ignore useless amicus briefs and read the useful ones.

I agree that the judges have discretion to accept or reject briefs. But I argue that it's rarely wise to reject briefs.

This case was not one of those rare cases where rejection would be wise. Professor Gillers does an excellent job of showing the weakness of the judges' legal argument.

Worse, from Sentelle and Randolph's point of view, denying leave to file only increased the influence of the brief by highlighting it. Clerks and judges who would have read the brief will still read it, and a few more might read it who otherwise might not have.

Sentelle and Randolph have also given former Judge Mikva a megaphone he didn't have before (the entire readership of the NYT, this blog, Beldar's blog, and whoever else is covering it). Sentelle and Randolph have diminished the respect the public will give their decision, and nudged any congressional debate toward the position former Judge Mikva asserts.

It's strange that experienced judges like Sentelle and Randolph did not understand that, whether you are a judge or a lawyer, being petty in litigation usually comes back to bite you in the rear.
12.31.2006 6:45am
Public_Defender (mail):
Look, IT'S IMPOSSIBLE TO BE WRONG ON THE MERITS WHEN IT COMES TO REFUSING OR ACCEPTING AMICUS BRIEFS. It is and has always been a matter of pure, unvarnished, unreviewable judicial discretion.

This is perhaps the silliest argument presented in the comment. Regardless of whether the decision to deny leave to file an amicus is appealable (my guess is that it's technically appealable under an abuse of discretion standard but practically un-appealable), we can still respectfully criticize judges for their decisions on such motions.

Many judicial decisions are practically unreviewable, but those decisions can still be wrong. The US Supreme Court is the final word on constitutional interpretation, but people frequently argue that the justices got it wrong. Many trial court rulings are effectively un-appealable, but trial judges can still make the wrong decision.

Likewise, Sentelle and Randolph's decision may be insulated from appeal, but it is not insulated from thoughtful criticism.
12.31.2006 6:55am
neurodoc:
No. If they "decided" the libel case the next day,
you would have to assume the opinion was already voted
on, written, published, and citechecked, and was
simply on panel or circuit review, depending on the DC
Circuit's procedure.

So, if the court rules this coming week, the Mikva-Wald "precedent" will apply? (Note that the NYT article saw the rejection of that amicus brief as a signal that a decision might be imminent.) Whatever happens, I do see some irony in the fact that Mikva was sitting on this same bench back in 1994 and rejected former judge Ken Starr's amicus then, and now former judge Mikva has had his amicus brief rejected by his successors.
12.31.2006 11:01am
Justin (mail):
Having just read your NRO article, I think you have to admit (okay, you won't, but anyone who reads it) is pretty weak.

First of all, the idea that an (already accepted) invitation to a (potentially lavish?) seminar couldn't influence the views of a decisionmaker is pretty weak. That doesn't validate the attack, of course - without any more evidence, it would be an unproven allegation even if it came the day after the conference - but your counter presumes too much.

Second of all, the Loken dismissal means nothing, and the Breyer point is just a weird, out of context dig.

Third of all, you should be honest as to what FREE is - a nonpartisan only in the legal sense organization that has a committed ideology - liberterianism approaches to the Environment. Now that does not make the organization equivalent to an oil company, although I'd love to see their donor list. But to say that these conferences are committed to simply education and debate not only sounds just as false as when the Federalist and ACS societies say the same, it also DIRECTLY CONTRADICTS THEIR WEBPAGE, which say that they're committed to focusing on a specific type of approach (one they claim is "pro-environment" but also thinks about money).

Finally, an "independant" report is generally not commission and paid for by the organization who is doing the reporting, and Thomas Schelling, though a respected Nobel Lauriate, is also an on the record supporter of FREE's goals (liberterian approaches to environmental problems) since 1980.

I'm not sure how I feel about judicial conferences - surely the ones at the local Holiday Inn seem different in scope and feel than ones at 4 star luxury hotels - but your counter is not convincing.
12.31.2006 11:14am
Justin (mail):
neurodoc,

you either aren not understanding of what people are discussing or do not understand of the meaning of "precedent." All I can say is that, as many of us have noted, had Sentelle and Randolph rejected the briefs without comment nobody would be having this discussion.

If the ruling was coming down this week, and the court rejected the amicus curae briefs either as untimely or without comment, nobody would have batted an eyelash - not even Judges Mikva or Wald.
12.31.2006 11:17am
CrazyTrain (mail):
Then why is there even a rule that you have to get leave of the court to file as an amicus? . . . Look, IT'S IMPOSSIBLE TO BE WRONG ON THE MERITS WHEN IT COMES TO REFUSING OR ACCEPTING AMICUS BRIEFS. It is and has always been a matter of pure, unvarnished, unreviewable judicial discretion.


Before using all caps and throwing the equivalent of a tantrum in a comments section, maybe you should, like you know, read the freaking rule on Amicus Briefs. FRAP 29 says you do not need leave of court to file amicus briefs in two situations: (1) when the US or a State is the amicus; and (2) when all parties to the appeal consent to the brief. Thus, you are simply wrong that a Court must always grant leave to file.

Apparently, the proposed brief here was consented to by all parties. Thus, the panel's rejection presumes that there was something legally wrong with filing it, that the panel could not accept the brief despite FRAP 29's apparent requirement that it be filed. So, uh, maybe you should stop yelling (even if you disagree with my interpretation of FRAP 29, which all appellate litigators I know have always assumed to be true (I have filed a lot of amicus briefs unaccompanied by any request for leave when all parties consented) it is still very much an accepted and arguable point so your little tantrum was rather silly).

Thanks for coming out Jeremy T; better luck next time.
12.31.2006 12:43pm
Jeremy T:
CrazyTrain,

You wrote:


Before using all caps and throwing the equivalent of a tantrum in a comments section, maybe you should, like you know, read the freaking rule on Amicus Briefs. FRAP 29 says you do not need leave of court to file amicus briefs in two situations: (1) when the US or a State is the amicus; and (2) when all parties to the appeal consent to the brief.

Apparently, the proposed brief here was consented to by all parties.

...

Thanks for coming out Jeremy T; better luck next time.


Respectfully, next time you might want to actually read the brief and the rule before you attack me. FRAP 29 says, in relevant part: "Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing."

So it doesn't matter if the parties "consent" to the filing in some broad sense, if the brief itself does not state that all parties have consented. The brief, which you can find here if you'd like to check up on me, contains no such statement that all parties have consented to its filing. Therefore the part of FRAP 29 that you attack me with is wholly inapplicable to the case at bar.

Now it is true that the motion for leave to file was unopposed, but that's a different cup of tea from the brief containing an actual statement of consent by all parties. Further, one cannot sensibly equate the lack of opposition to a motion for leave to file an amicus with "consent." (Even if one could, consent isn't enough; the brief has to have a statement of consent in writing, which is not the case here.) In fact, if you have done as much amicus filing as you claim, you'd know that you don't even file a motion for leave to file if you have consent from all parties. You just file the brief with a notice of consent. If that had been the case, there would never have been any motion for leave for the court to deny.

Thanks for coming out CrazyTrain; better luck next time.


Public_Defender,

You wrote:


This is perhaps the silliest argument presented in the comment. Regardless of whether the decision to deny leave to file an amicus is appealable (my guess is that it's technically appealable under an abuse of discretion standard but practically un-appealable), we can still respectfully criticize judges for their decisions on such motions.


I don't think there's any legitimate basis for criticism here. The decision to grant or deny a motion for leave to file an amicus brief is not just wholly within the court's discretion, it's wholly within the court's personal preference. You don't have any more right to criticize a judge for a decision relating to a motion for leave to file an amicus brief than you do to criticize a judge for the kind of car he drives.

The First Amendment obviously says you can criticize a judge for whatever you want. I just think it's baseless and silly to criticize judges for their decisions on amicus briefs, because it's wholly a matter of judicial personal preference. I think the problem here is that people just tend to assume that a court should let an amicus brief in unless there's a reason to keep it out. While that may be the practice of many courts, it's not the law.
12.31.2006 1:33pm
John Doe (mail):
In light of John Steele's thoughtful post, I have to wonder at Gillers' bizarre observation here:

The ethics opinion the majority cites is aimed at the dangers when one lawyer in a contest, trial or appeal, is a former judge and his former title is used, even if not before a jury. That's the example offered in the opinion. It can appear to the litigant whose lawyer is not a former judge like the opposing lawyer has special sway. The opinion does not address the current situation and so far as I know, no one has argued otherwise.

So, if someone drafts a broad ethics rule, and then provides a specific example, the rule now applies only to the specific example and not to any other situation that would otherwise clearly fall within the rule? Wow. Ethics committees better rethink their practice of offering examples at all, especially for sweeping rules re: conflict of interest or duty of confidentiality.


It's also very interesting to see that Gillers thinks that if you can find 3 cases that happened to have involved amicus briefs from federal judges (albeit without any commentary at all on the rule), that means the rule doesn't apply.
12.31.2006 2:07pm
r78:

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views.

I don't keep up with the specifics of these spats, but a member of the public could certainly look at the judges decision (that happened to favor a certain "anti-environmental" position as being related to the fact that s/he previousel or subsequently was enticed or rewarded with a free vacation.

I have no doubt that this is seldom actually the case. But there is a reasonable appearance that there is.

(After all, judges (especially fed. judges) complain often about how they are scraping by supporting their families on only $150K a year or so and how it is just outrageous that 1st years at some firms earn more than they do.)

A vacation and plane tickets, greens fees, hotel and meals probably only comes to 5 or 10 grand, but if a judge is having such a hard time financially, that could be a real incentive.
12.31.2006 2:47pm
Public_Defender (mail):
The decision to grant or deny a motion for leave to file an amicus brief is not just wholly within the court's discretion, it's wholly within the court's personal preference.

Do you have any authority for that? I've never heard of the "judge's personal preference" standard for deciding a motion. Or are you just inventing a standard?

You don't have any more right to criticize a judge for a decision relating to a motion for leave to file an amicus brief than you do to criticize a judge for the kind of car he drives.

Now you're just getting sillier. The kind of car a judge drives has nothing to do with his job. By contrast, ruling on a motion is the judge's job. Judges are entitled to their personal preferences in their private lives, but the decisions they make on the job are fair game for thoughtful criticism.
12.31.2006 4:39pm
Jeremy T:

Do you have any authority for that? I've never heard of the "judge's personal preference" standard for deciding a motion. Or are you just inventing a standard?


I'm waiting for your authority that establishes that a refusal to accept an amicus brief is even appealable. (Hint: it's not.) No person has a right to file a brief, outside of specific situations established by the rules that are inapplicable here.

If something is absolutely unappealable, and there is no articulated standard in the rules, then I don't know how you can sensibly assert the proper standard for deciding the motion is anything OTHER than the judge's own personal preference. As I said earlier, the decision to accept or reject an amicus brief just can't ever be "legally wrong" except in very narrow, inapplicable circumstances.


Now you're just getting sillier. The kind of car a judge drives has nothing to do with his job. By contrast, ruling on a motion is the judge's job. Judges are entitled to their personal preferences in their private lives, but the decisions they make on the job are fair game for thoughtful criticism.


Supposedly the purpose of a friend of the court brief is to HELP THE COURT. If the court decides it doesn't want or need help from the proffered brief, the court can refuse to accept the brief. Period. It doesn't matter why the judge makes the decision. Perhaps instead of "car the judge drives" I should have said "electronic legal research system the judge uses." It's all equally useless to argue over these things, because it's just a matter of personal preference for the judge.
12.31.2006 5:23pm
Public_Defender (mail):
I'm waiting for your authority that establishes that a refusal to accept an amicus brief is even appealable. (Hint: it's not.)

In an earlier comment section, you conceded that the denial would be reviewable if the court refused to accept a brief based on the author's race. Either they are reviewable or not. Which is it? But again, this is irrelevant to the question of whether Sentelle and Randolph made their decision wisely.

Supposedly the purpose of a friend of the court brief is to HELP THE COURT. If the court decides it doesn't want or need help from the proffered brief, the court can refuse to accept the brief. Period. It doesn't matter why the judge makes the decision.

If helpfulness really were the standard, then Sentelle and Randolph were discourteous to their colleague, who wanted the opportunity to review the brief. Some briefs (and some portions of some briefs) are helpful to some judges, but not others.

But helpfulness was not the reason that Sentelle and Randolph gave for not permitting the filing of the brief. In a cursory ruling, they ruled that it was unethical for the retired judges to file the brief. It is perfectly fair to argue that the judges got that wrong as a matter of law. If members of the public can't argue that judges misinterpreted the law, what can they argue?
1.1.2007 9:19am
Jeremy T:

In an earlier comment section, you conceded that the denial would be reviewable if the court refused to accept a brief based on the author's race. Either they are reviewable or not. Which is it?


The decision to accept or reject an amicus brief based on the race (or insert protected class here) of the submitter would probably be reviewable, or the decision to reject an amicus brief that the rules give a party (i.e. governments) the right to file would also probably be reviewable. But outside of those two circumstances, the decision would not be reviewable. This decision is not within one of those two circumstances.


If helpfulness really were the standard, then Sentelle and Randolph were discourteous to their colleague, who wanted the opportunity to review the brief. Some briefs (and some portions of some briefs) are helpful to some judges, but not others.


This I think is actually a pretty good argument, the first good one I've seen on the side that Sentelle and Randolph were wrong. But here are two points which destroy it: if the drafters of the FRAP wanted acceptance of amicus briefs to be on a judge-by-judge basis, the rules would allow that sort of thing. Further, there is no rule that the third judge cannot go ahead and read the thing. His ability to gain whatever wisdom is contained within the brief has not been challenged.


they ruled that it was unethical for the retired judges to file the brief


I think a fairer characterization of the ruling was that it is of questionable ethics for retired judges to file briefs AS RETIRED JUDGES. And I think that's the right result, quite frankly. Because an amicus brief can be rejected without any reason whatsoever, it can certainly be rejected if there is even a hint of impropriety behind its filing. I think there is a hint of impropriety here, though not much more than a hint. I certainly don't think the judges who sent in the brief should be sanctioned in some fashion, but at the same time, their submission is questionable.
1.1.2007 11:47am
Public_Defender (mail):
I think a fairer characterization of the ruling was that it is of questionable ethics for retired judges to file briefs AS RETIRED JUDGES. And I think that's the right result, quite frankly.

(bold added)

It is perfectly fair for you to argue that the judges ruled correctly. But it is also perfectly fair for others to argue that the judges ruled incorrectly or unwisely.

You keep arguing that the rules permitted the judges to rule as they did as if that somehow would end the discussion. There is a strong argument that the judges got the ethics law wrong. But even if the judges' decision were both unreviewable and permitted by the rules, it could still be unwise. And members of the public and the practicing bar have every right to make thoughtful criticisms.
1.2.2007 4:45am
stephen Gillers (mail):
My phrase was "silly formalism." Here is the paragraph containing the phrase and I follow with my reasons for it.

"So if the adverse party does not object, what is the value the majority seeks to preserve? Could it be be some perception that the public (not the parties) will be disconcerted if the amicus brief is accepted while identifying the former judges as former judges but not otherwise? Is this the kind of silly formalism to which judicial ethics has sunk or is there another explanation for the Sentelle-Randolph refusal to consider the arguments in the brief?"

What I meant and hoped to say with the phrase is that with no empirical or -so far as I can see - intuitive support for an underlying value, the court merely takes a major premise (the ethics opinion as it reads it, wrongly in my view); applies the major premise to a minor premise (the brief); and reaches a conclusion (strike the brief). That's formalism as I understand it: Going through a form without actually offering arguments apart from whatever can be teased out of the ethics opinion the court cites.

But, and on further reflection, the decision is worse than formalism because it can actually harm the value the majority presumably wishes to protect. That value again – the only one I can think of - is public confidence in the court’s ruling.

How can it harm this value?

Participants in this forum will know, even if the brief is redacted, that the former judges are former judges. We will know the court knows that. We don’t believe that their status will affect the ruling.

So the public whose trust we mean to insure must be the the public that does not know that the amici are former judges.

Our strategy then depends on the hope that the public will remain ignorant. Imagine the response if the public eventually learns that the amici are former judges: “Why did they conceal it from us (surely the court knew it)? What were they trying to accomplish?”

A public that learns that the amici concealed their former status from the public (because they had to, because the court required it) would, in my view, be much more suspicious of the court's integrity and ruling than if the information were revealed in the brief.

But we may say, “but the public will not likely ever learn this so it's nothing to worry over.”

That cannot, however, be a proper basis for an ethical argument. We must assume the public will eventually learn the status (perhaps the press will report it). In any event, will anyone argue that we can build an ethical system on the hope of public ignorance?

So for this reason, I say, the court’s insistence that the brief delete the former status of the amici is not only formalism but is actually harmful.

On the question of the value of other circuit and high court cases in which the judges did not strike amici briefs in which the "interest" of the amici identified their former status: Correct, the issue was not discussed, so there's no ruling on the reach of the ethics opinion.

But surely when these courts not only accept such briefs (and in the 7th circuit case, cite their "benefit"), it is some evidence that the the judges there did not see a danger to the credibility of their rulings by doing so (and did not believe that they were themselves acting unethically). Why not? Because there is no danger. And if there is none (if in fact the danger to the court's credibility is greater if the amici are required to omit their former status as I argue above), then what value do we protect with this ruling?
1.2.2007 11:21am
John Steele (mail):
Regarding the notion that letting former judges use their title in litigation papers filed with the court will lead people to have less confidence in the process, Professor Giller saysm "What I meant and hoped to say with the phrase is that with no empirical or -so far as I can see - intuitive support for an underlying value ...."

There's obviously lots of support for that proposition, even if one ultimately gives it little weight. First, we have a long history of judicial ethics regulating subsequent use of the title "judge" because it will be seen as trading on an insider's status. Second, look at these comment posted at this blog alone -- each of which is based at a minimum on an intuitive support for the proposition:


“Gene, I'd say the reason the amici identified themselves as retired federal judges is because they believe that status makes their arguments more valid than other amici or the parties. You might agree; however, the Advisor Opinion wants to discourage retired judges from invoking that status to provide additional credence to their argument. The retired judges attempted to do just that”

“If the amicus judges weren't trying to use their positions to highlight the significance of their comments, then why identify themselves as retired judges? I don't see how one can argue it isn't relevant whether they identified themselves as retired judges when the amicus authors themselves apparently believe their history gives them insight that makes their opinions particularly relevant and valuable.”


“These are retired judges. Seems fair to me that they ought to be able to participate like any other private citizen. And that's what the rejection seemed to imply: they could resubmit the brief striking the mention that they are former judges. That also seems appropriate to me. Other than their presumption that their opinions are more important than someone elses, nothing in the brief hinges on their judicial experiance.”


“Sounds like the right result to me. "Judges" should not involve themselves in any political controversies, period... nor in legal controversies except for those over which they are presiding.”

“It seems to me that this brief simply trades on professional celebrity and appeals to political affinity, neither of which properly assists the court in deciding the case.”

"’They may also hope that the public and the bar will pay such special attention as well.’ Yes, indeed. The last thing the judges deciding these issues need is a group of publicity seekers trading on their past association with the courts. Let them write their brief on the NYT op-ed page. Do you think their brief actually adds anything to the controversy? Any new arguments here? Or just politics and press relations? I may be too cynical, but I think the judges who have to decide this probably had a "what the hell is this" reaction, followed quickly with a well deserved, ‘butt out.’”

“What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges. …. Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit -- and indeed, in that latter respect it appears to have backfired rather badly, eh? I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; let them sign on with a simple "Esq." title if they want to return to legal practice as counsel of record.”

“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.”

“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.”



“I subscribe to the simple proposition that an ordinary schlub has the right to appear before the bar of justice without having to face an opposing counsel who places the word "judge" before his name.”


“The stated purpose of the rule is to protect against the "los[s] [of] a degree of confidence in the integrity and impartiality of the judiciary" and the risk of "demean[ing] the court as an institution." Those risks are exactly the risks at issue here: should judges be permitted to act as advocates using the authority and respect granted the position of judge?”




“These "retired federal jurists," as they describe themselves, no longer have any interest in the federal judiciary that exceeds that of any other citizen. The only reason to accept their brief (at least a reason based on their interest in the matter) is because they are trading on their status as former judges.”


‘I certainly respect these judges, but if you change their names to men and women on the street, there is no reason for the court ever to take this brief; their interest in the matter today is no different from people on the street; and the sole reason that can thus be offered why their brief should be accepted is their status as former judges. I can understand the court's reluctance to let that be a factor.”
1.2.2007 1:23pm
Tom R:
I'm going to offer a reason why retired US officials should not continuing their old title ("Senator", "Judge", or even "The Honourable"), a reason that may seem to come from left field: that it's a violation of the spirit of the Titles of Nobility Clause and the Republican Guaranty Clause.

"Violation of the spirit" = that a court should hold, *if* a proper case or controversy arose, that the Constitution had been breached, although in practice it's unlikely any likely plaintiff would be able to show standing, justiciability, etc, to get into court.

But still, to attach a title to a person for life - not merely use it to refer to that person while s/he's actually holding and performing that office - is as contrary to the intent and tenor of the US Constitution as if the President delivered a three-word State of the Union Address to Congress.
1.2.2007 8:06pm
Jeremy T:
Prof. Gillers,


So for this reason, I say, the court’s insistence that the brief delete the former status of the amici is not only formalism but is actually harmful.


Well I realize that many folks never let the actual facts get in the way of a good argument, but the court did not "insist" that the brief "delete" the former status of the prospective amici. That idea comes from your quote in the newspaper.

I can't imagine why you assume that if the brief is amended to remove the reference to the fact that the prospective amici were former judges that the brief would then be accepted. It's at least reasonable to think that the brief would again be rejected on the same grounds, because the folks attempting to file the brief have already poisoned the well by referring to themselves as former judges.

Further, as a basic factual matter, no one but you has apparently suggested that this simple amendment/redaction would get the brief accepted. So I would caution you not to criticize the court for a strawman argument you're putting in their mouths.

Now if the court had said "amend the brief and resubmit," then your conclusion would at least be arguably valid. But the court did not say this, at least to my knowledge, and so your conclusion that there is "silly formalism" here is without any merit whatsoever, based as it is on non-facts you have assumed to be true.

Further, you can argue all you want about competing "values" and how the court's decision might harm the values it tries to uphold (or something like this; most people, including me, glaze over a bit at all of this law-professor-competing-values stuff). But it seems to me you're being shortsighted with your analysis. The fact is, from now on, most people who might want to file an amicus brief on behalf of a former federal judge are probably going to avoid referencing that person's status as a former federal judge. I think that's the right result, and, as John Steele has noted above, a lot of people agree with me. While left conveniently out of your analysis (for obvious reasons), I think it's reasonable to conclude that this incident will make it less likely for former federal judges to try to use their old positions to sway results in current controversies.
1.3.2007 4:00am