D.C. Circuit Rejects Retired Judges' Amicus Brief:
Today the U.S. Court of Appeals for the D.C. Circuit denied "the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006" in the consolidated cases of Bouemediene v. Bush and Al Odah v. United States. The three judge panel's order was issued without opinion, providing only a parenthetical citation to Advisory Opinion 72 from the Judicial Conference's Committee on Codes of Conduct, which reads in relevatn part:
Judges should insure 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.
Judges Sentelle and Randolph supported the order. The third judge on the panel, Judge Rogers, wrote a brief dissent, arguing that the Court traditionally allows the submission of amicus
briefs when not opposed by the parties and supported by a sufficient statement of the amici
's interest. Advisory Opinion 72 was not controllng, Rogers argued, adding that rejecting the brief could create the appearance of partiality on the part of the court.
A copy of the brief in question is available here.
What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?
Maybe I'm missing something, but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases. Here's the panel's reasoning:
Upon consideration of the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006, and the lodged brief, it is
ORDERED that the motion for leave to file be denied. See Advisory Opinion No. 72, Committee on Codes of Conduct, Judicial Conference of the United States ("Judges should insure 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."). The Clerk is directed to return to movant-amici curiae the lodged brief.
Well, here's the full text of the Advisory Opinion
Use of Title "Judge" by Former Judges.
A judge has inquired respecting use of the title "judge" by former judges who have returned to the practice of law and whether sitting judges have any ethical responsibilities relating to such use.
Historically, former judges have been addressed as "judge" as a matter of courtesy. Until recently there have been very few former federal judges. With federal judges returning to the practice of law in increasing numbers, ethical considerations are implicated. The prospect of former federal judges actively practicing in federal courts raises what otherwise might be an academic question into a matter of practical significance.
A litigant whose lawyer is called "Mr.," and whose adversary's lawyer is called "Judge," may reasonably lose a degree of confidence in the integrity and impartiality of the judiciary. Moreover, application of the same title to advocates and to the presiding judicial officer can tend to demean the court as an institution. Judges should insure 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.
February 2, 1982
Reviewed January 16, 1998
The opinion seems right so far as it goes, but its reasoning just doesn't apply here. The judges aren't acting as lawyers. They're not being called "Judge" instead of "Mr." in the hearing of a jury. No-one will be confused about whether they are current judges and thus equivalent to the presiding judicial officer, or whether they are retired judges. The brief makes clear they're retired judges, and the panel most certainly knows that they're retired judges. It's not even clear whether the judges are using the title "judge," given that the briefs make clear that they're retired judges. But if one does count this as using the title, there seems to be nothing unethical or harmful to the judiciary for them to use the title this way.
Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that -- the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.
The views of respected former judges such as Shirley Hufstedler, Abner Mikva, and Patricia Wald about how the judicial system should handle certain kinds of cases should indeed attract special attention because they come from people with many years of high-level experience with the judicial system. Perhaps the panel will ultimately conclude that the views are unpersuasive, and that the former judges' past experience isn't that relevant here; but that's a reason to decline adopting the brief's reasoning, not a reason to reject the brief outright. There's nothing wrong with the former judges' filing an amicus brief that seeks to take advantage of their past experience as judges, and no reason for them to hide their previous judicial status.
In this respect, the identification of the brief's signers as former judges may fit within the text of the Advisory Opinion itself, because "the designation is necessary to describe accurately a person's status" -- here, status as a former federal judge who therefore has a special and potentially especially valuable perspective on the judiciary, judicial review, and due process -- at "a time pertinent to the lawsuit." But even if the designation doesn't fit within this proviso, the Advisory Opinion seems to have been written with an eye towards a very different sort of conduct by former federal judges, and there's no reason to apply it literally to this conduct. The Opinion is an expression of the Committee's reasoning, to be followed in situations where the reasoning is relevant (such as participation by federal judges as lawyers in litigation, especially in front of juries), not a statute to be followed according to its letter in all contexts to which it literally applies.
So I just don't see the logic behind the panel's decision, and Judge Rogers' dissent strikes me as much more persuasive. Am I missing some important argument here?
A Legitimate Concern With Allowing Amicus Briefs on Behalf of Retired Judges:
I tend to agree with Eugene
that it was ill-advised for Judges Sentelle and Randolph to reject the amicus brief filed on behalf of the retired judges in one of the pending Guantanamo cases. At the same time, I think there's a significant institutional reason a court might want want to limit such briefs that may explain the court's action.
The key, it seems to me, is that most retired judges who put their names on amicus briefs probably have little or no involvement in the writing of the briefs. In this case, for example, the cover page of the brief
suggests that it was written by lawyers at two private law firms. I don't know if the retired judges who were the clients in this particular case were actively involved in discussions about what the brief said. But I would imagine that in most cases, the judges won't have much involvement at all. This is certainly how it works with law professor amicus briefs. In my experience, most professors who put their names on amicus briefs have at best a passing familiarity with the arguments filed in their names.
If I'm right about that, briefs filed on behalf of former judges normally won't be filed to give the court the benefit of "many years of high-level experience with the judicial system" that the judges have. Rather, the briefs will be authored by some law firm attorneys with no particular experience, filed with the retired judges' names on the cover simply to get some extra attention to the lawyers' views. I personally don't have a particular problem with that practice. But I can imagine that if you're a sitting judge, you might not think it appropriate for retired judges to try to use their former positions in that way. It's a bit artificial, given that they didn't actually write the briefs, and at worst it can encourage lawyers to see who can find the most prestigious retired judges for their side. ("Wait, they have Wald and Mikva? Quick, someone call up Starr and Bork!!!") It may be better to discourage this sort of practice and have the lawyers file their amicus briefs without the attention-getter of retired judges on the cover.
Of course, this is only one institutional interest competing with others, which is why I ultimately think it was probably ill-advised to reject this brief. But I think there is a substantial concern there that may help explain the panel's decision.
Retired Judges Filing Amicus Briefs:
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?
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.