A divided panel of the United States Court of Appeals for the District of Columbia Circuit, which will soon decide an important case concerning detainees at Guantánamo Bay, Cuba, rejected a friend-of-the-court brief submitted in the case by [seven retired federal] judges. Two former chief judges of the court were among those rebuffed....Mikva interviews that it's not political, it's personal: the judges are just mad at him for opposing those free vacations people like to give them.
“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 former chief judges on the brief, Abner J. Mikva and Patricia M. Wald, were appointed by President Jimmy Carter.
Let's assume, though, that this was an actual legal opinion and not an abuse of power or a fit of spite. Isn't this a serious issue? Two legal experts take two sides:
Ronald D. Rotunda, a law professor at George Mason University, said it was an unexceptional application of a sensible policy.The court's opinion -- for Judges David B. Sentelle and A. Raymond Randolph -- is very short, little more than an invocation of a sentence in Advisory Opinion No. 72 of the U.S. Judicial Conference Committee on Codes of Conduct:
“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.”
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.That opinion appears in full in Judge Judith W. Rogers's dissenting opinion, and you can see there that the concern was the appearance of partiality where a judge calls one lawyer "Mr." and the other lawyer "Judge," not any larger question about whether judges have a sufficient interest in the litigation to justify filing an amicus brief. In this case, here's how they phrased their interest:
Amici are retired federal judges who have dedicated their professional careers to our judicial system. The issue presented by these consolidated cases challenges the integrity of that system: may this Court sanction life-long detention in the face of credible allegations that the evidence upon which the detention is based was secured by torture?Basically, the judges offer their judicial opinion. As the dissenting judge notes, the U.S. Supreme Court accepts briefs from former federal judges whose interest is solely a judicial perspective. In Hamdan v. Rumsfeld, there was a brief from former federal judges whose stated interest was only that they were former federal judges and had an opinion on the issues in the case.
If it is an established practice and since the motion to submit the brief was unopposed, it does seem "more than petty" and "unnecessary and insulting" to reject the brief. I might be willing to accept the idea that there is something deeply wrong with former judges submitting what are nothing more than judicial opinions to sitting judges, but with no substantial opinion explaining this position, Sentelle and Randolph have nothing.
ADDED: To stave off confusion and needless corrections, let me say that the usage of "interviews" above is Television Without Pity style slang. And you can consider me to be doing Courts Without Pity. And don't steal Courts Without Pity™ as name for your blog.
MORE: Three Volokh Conspirartors weigh in.
Eugene Volokh says:
[T]he 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.Orin Kerr suspects that the retired judges are probably just allowing their names to be used on briefs they didn't work on and know little about. Maybe this should be discouraged, but it wasn't worth rejecting the brief.
Jonathan Adler writes to reject Mikva's charge that Sentelle and Randolph had a personal grudge: "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."