December 30, 2006

Should judges accept amicus briefs from former judges?

Here's a conspicuous rejection:
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....

“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.
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.

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.

“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.”
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:
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."


Anonymous said...

I ran across this while surfing around when I couldn' sleep last night and wondered if you would opine on the subject.

You're probably right, but just because something has "always been done" doesn't mean it necessarily follows that it should be. I'd prefer the judicial system to have every appearance of being, well, impartial, and not granting preferential treatment to someone just because he or she is one of the chosen few.

Tradition has it one way, but the rules have it another. Hmmm. How about this: change the rules or change the tradition. It doesn't look good for those enforcing the rule of law to be always "looking the other way" with regard to their own rules.

Political or personal (probably a bit of both), or not, it is unseemly, both the petty decision and the idea that former judges receive preferential treatment not accorded ordinary citizens. What was that about all of us being equal before the law? Who was it who wrote, "but some are more equal than others?"

Anonymous said...

This strikes me as one of those "one hand, other hand" issues. Either side - amici and current judge - could be jerks about it. Ann illustrates how a judge could behave badly. An amicus could also exert undue influence by leveraging his notoriety: submit a brief, knowing it'll be rejected, then mention that to a reporter; swamp a good judge with needless briefs; etc.

Were I a judge, I would probably graciously accept all amicus briefs, and then sort them according to how I think that amicus would opine. Then I see how much time I have for reviewing them, and split time evenly among the stacks. (Note that I have no legal training whatsoever; I don't know if there are additional rules governing this.)

Ann Althouse said...

It's hard to see why it matters. Accept it and don't read it. Who will even know? But this case was about making a show of refusing to read it. That has to be saying it is wrong for former judges to do this. They need to explain why it is wrong.

Zeb Quinn said...

Maybe because, like polygraphs, it comes too close to invading the province of the factfinder, in this case those/he/she/it who sit in the bench seat in real time. Or giving the unhealthy appearance of doing so.

Simon said...

"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."

I've defended the use of the term "judicial acitivism" in the past, but in this context, its use is just preposterous. How can a judge engage in "judicial activism" once they've left the bench?! Both Mikva and Wald retired from the bench before Bush took office.

Rivkin seems to be implying that if a person who is or has been a judge takes an opinion on a subject, even in the personal life, that means that they're a "judicial activist". Good grief, no wonder people consider the term to be meaningless if people like Rivkin keep insisting on using it in idiotic, meaningless ways. By that absurd standard, virtually every judge and justice in the history of the Federal Judiciary except the second Justice Harlan is a judicial activist, because presumably, they all had political opinions and voted in elections.

Cedarford said...

It sounds like the basic setup we have come to deplore in Congress, Hill staffers, out of power former members of the Executive.

Former official of some clout and with access to those now in power is put on retainer. To try and perpetuate their power and earn money or advance their ideology.

Spin it any way you want, but it basically boils down to former judiciary wanting the same good deal a former Senator, or present Senator's wife or brother in law gets. The gold and privileges that are there for the taking, in lobbying.

A panel of August Former Judges or administrators on full pension gathered up by the likes of Soros, Bank of Shanghai, the ACLU, Microsoft, Haliburton for several days of swank entertainment and honorariums for speaking. They return and get a little time as Good Ol' Judge (retired/emeritus) Sol, Fred, or Ruth with present Court members Steve, Liz, Hyman and say that they have had "excellent discussions at a recent panel and got commensurate fees for services" and now know enough that they wish to file amicus briefs on behalf of the fine people at Open Society.

And are told, sure Sol, Fred, Ruth...go ahead...your opinions matter..

JohnF said...

The rules of appellate procedure that govern amicus briefs require the amicus to show his interest in the proceeding. Thus, newspaper trade groups are more likely to be allowed in as amici in a case involving reporters' privileges than the man on the street or average citizen.

In this case, the statement of interest by these "retired jurists," as they called themselves, was simply that they used to be part of the judiciary, and the issues in the case relate to the integrity of the judicial process.

Well, so what? Everyone and his brother has that interest. These retired jurists have no more interest in these proceedings than the man on the street. They are simply trying to trade on their former status, for publicity or otherwise. The retired jurists did not write the brief either--it was prepared by law firms--though I guess they may have read it.

I would think the reaction of the judges getting this application would be, first, "what the hell?" and then "butt out guys." The brief adds nothing new, and no new perspectives. The rationale for rejecting the application seems to be an attempt to clothe the court's irritation with some politeness. Most observers realize it was a makeshift which did not serve its purpose. However, acceptance or rejection of amici is discretionary in any event.

Finally, amicus applications are, in fact, declined all the time. Instead of taking the thing and disregarding it, the courts want to keep some precedents in place to stop frivolous or other useless applications at bay.

Anonymous said...

I think Sentelle and Randolph were actually trying not to embarrass the former judges by keeping the per curiam opinion as terse as they did. I think the logic is fairly easy to follow: the cited judicial ethics opinion prevents former judges from using their title as a proxy for a professional qualification once they re-enter private practice. Submitting an amicus brief expressly in their capacity as former judges is an obvious attempt to leverage their status--exactly what the ethical restriction forbids.

As for the observation that the Supreme Court commonly allows this - I wish it wouldn't. The practice of receiving amicus briefs written by former judges in their capacity as former judges has long struck me as improper.

Status as former judges gives them no special insight into how future cases ought to be decided. Generally speaking, they aren't as familiar with the scholarship as law professors nor as conversant with applicable caselaw as law clerks and practicioners. And I certainly don't put much stock in the pompous notion that they somehow care more about the administration of justice than the rest of us.

Some of these judges may have something valuable to say and others not. But the idea that getting six of them to sign the same brief distinguishes that brief in any way that merits special amicus consideration is to me absurd.

yetanotherjohn said...

I have never considered filinc an amicus curiae brief, but had assummed that if I did it would have to be accepted. They might spend less than a minute perusing it and then rejecting what I said, but that they couldn't bar me from filing the brief.

If this was really a petty snit to bar the brief, wouldn't it have been much more effective to have vented their spleen in the opinion, taking the brief apart and showing the writer as a fool. Even a Learned Hand opinion could be made to look foolish with the right slant put on it.

Mark Daniels said...

Although I'm no lawyer, I see no reason to reject amicus briefs simply because a person is a former judge. We allow others to file such briefs. Why would we discriminate against those who presumably have somethings to say that are relevant and helpful.


Zeb Quinn said...

It seems oxymoronic for a judge or retired judge to be filing a brief in a case, at least under that rubric. Lawyers file briefs to advocate and argue a side or position. Judges are supposed to remain impartial, neutral, above the fray, and render a decision after fully hearing both sides, not be an advocate for one side from the getgo.

Kenneth Almquist said...

"Accept it and don't read it. Who will even know?"

I'm not a lawyer, but this strikes me as a really horrible idea. Public confidence in the judicial system depends on the belief that judges will give thoughtful consideration to the arguments placed before them and attempt to render an impartial decision. If a judge doesn't even bother to read one of the briefs, that's a betrayal of the public trust.

As for who would know, the public might get a clue when the court's decision failed to mention the arguments that appeared in the unread brief. If the rejected brief doesn't contain any arguments that don't also appear in briefs that the court accepted, then the rejection was, at worst, a harmless procedural error.

CharleyCarp said...

A Few Thoughts:

a. One has to distinguish between the amicus, and the lawyer for the amicus. Were these judges acting as lawyers, or as parties?

b. It's very common that amicus briefs are not mentioned in opinions. Much less common that they are. Not mentioning the opinion wouldn't mean anything, unless the court says something like 'no one claims x' where 'x' is what is in the amicus brief.

c. It's entriely likely that the panel doesn't want to acknowledge the contents of the brief. Read it, and you'll know why.

BizzyBlog said...

I think WSJ got this one exactly right in its Sat. subscription-only editorial:

We see little reason why that endless roster of former judges, ambassadors, generals and the like shouldn’t approach the bench as do the rest of us. These seven should feel free to refile their opinions, as Mr., Ms., or whatever.

Amen. I'm sick and tired of the pretentiousness of "formers" wanting/expecting to be addressed as if they still hold their office.

And Emily Post says it's improper for them to do so (even presidents), so it's bad manners to. Having better manners in 2007 would be a noble resolution for everyone.