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.
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