Should Justice Ginsburg at least explain why she does not recuse herself in the travel ban case?

Lawprof Ronald Rotunda — in a WaPo op-ed — says that she should.

We already know what Ginsburg thinks of the president. She told us more than a year ago that she “can’t imagine what the country would be . . . with Donald Trump as our president.” Facing criticism for her apparent endorsement of Hillary Clinton and her attacks on Trump, Ginsburg doubled down, emphasizing in a CNN interview: “He is a faker.” She then went on “point by point, as if presenting a legal brief,” the CNN analyst said.

Her statements are particularly troubling in the context of the travel ban case, in which the crucial issue — at least, according to the lower courts and the plaintiffs — is the personal credibility of Trump and whether he delivered his executive order in good faith — in other words, whether he is faking it....

This reminds me most of Justice Sandra Day O'Connor, watching the election results at a party on November 7, 2000, as described (on Christmas Eve, 2000) by Michael Isikoff in Newsweek, :

[S]urrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

Not long after that outburst, O'Connor participated in the Bush v. Gore litigation. Should she have recused herself?

Ah, here's a Washington Post piece by Aaron Blake from the summer before the 2016 election, talking about whether Ginsburg should have to recuse herself:

It's not clear that there is any real precedent for what Ginsburg just did.

Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore.

In some ways, what O'Connor did seems worse, since she revealed a personal interest in seeing Bush elected (though she did not retire until after he was re-elected). But Rotunda identifies a special problem with Ginsburg's indiscretion: The case may turn on whether to trust Trump about whether the purported reason for the ban is the real reason. She's asked to decide if it's real or fake, and she called Trump a faker.

"Ronald Rotunda, distinguished professor of jurisprudence at Chapman University in California, called Chisholm’s statements outrageous."

"There is no justification for a prosecutor to do this," Rotunda said. "If you were to write a recipe to chill your political opponents, this would be it. The only different between (Russian President Vladimir) Putin and this guy (Chisholm) is Putin charges his enemies with tax fraud and sends them to Siberia."

The pro-McCain argument that older is better.

Ronald Rotunda makes the pitch:

Older people can use both sides of their brain together, which gives them an advantage. As [Dr. Gene Cohen, director of the Center on Aging, Health & Humanities at George Washington University] notes, a 75-year-old historian can “run circles around” a 25-year-old Rhodes Scholar studying history. Older people continue to generate new brain cells if they are active and participate in events. Cohen says that age confers a “new senior moment—a creative moment.”

Of course, if the old person is vegetating on the couch, watching the Home Shopping Network, age confers no advantage, but that is not what John McCain has been doing. He has been exercising his brain and, like muscles, it improves with use. “Use it or lose it” applies to our brain as well as to our deltoids.

Older people can use both sides of their brain together, eh? I have some questions about that How do they know this happens? (Answer: MRI and PET scans.) Why is it better and not more like, say, needing to use 2 hands to carry something you find heavy?

I'm skeptical about these notions of right-brain creativity and left-brain analytical reasoning, but assuming the 2 sides of the brain do think differently and that some brain halves play better together, would it be better for a President to have a brain like that?

It's rather obviously that looking straight at the individuals — McCain and Obama — will give us better information about whose brain we want in the White House. But since there is a general prejudice against older brains and the people who think with them, it's helpful to know that they can be better.

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."

About that highly experienced Supreme Court law clerk.

A few days ago, we were talking about Justice Alito's new law clerk Adam G. Ciongoli, an experienced lawyer who worked closely with Attorney General John Ashcroft on Bush Administration policies that addressed theh 9/11 attacks. Today, Adam Liptak rounds up some opinion:

"We don't normally contemplate a high-level Justice Department official becoming a Supreme Court clerk," said Ronald D. Rotunda, a specialist in legal ethics at George Mason University School of Law. "It's just asking for problems that are unnecessary." Most Supreme Court law clerks, who prepare memorandums and draft decisions for the justices, have little of note on their résumés beyond superior grades at a top law school and a clerkship with a federal appeals court judge.

"They're like legal Doogie Howsers — child prodigies of the law," said David Lat, a former federal prosecutor whose blog "Underneath Their Robes" reports on the hiring of Supreme Court clerks. "Yet they're influencing decisions that affect millions."...

"It really indicates a lapse in judgment," Deborah L. Rhode, who teaches legal ethics at Stanford, said of Justice Alito's decision. "I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."...

"He cannot work for the justice on any cases that come before the court if he worked on those matters at Time Warner or the government," said Stephen M. Gillers, who teaches legal ethics at New York University. "You don't want him to the judge [sic] the quality of his own work."

Of course, it will never be possible to know what sort of casual conversations may take place in Justice Alito's chambers, said Monroe H. Freedman, who teaches legal ethics at Hofstra University. "No one is ever going to be able to police that," Professor Freedman said.

But, he added, "There is also a presumption that the justice can think for himself regardless of anyone he gets advice or counsel from."...

In all, Justice Alito's decision to hire Mr. Ciongoli was smart, said Steven Lubet, who teaches legal ethics at Northwestern. "Somebody with some real experience can provide better work than someone who's green," Professor Lubet said. "It's a terrific idea."

I'm surprised the opinion is as positive as it is. I would have expected a flood of comments like Rhode's, especially since so many lawprofs opposed Alito anyway. But maybe lawprofs like the idea that mature persons with a depth of experience working closely with Supreme Court Justices. Ciongoli aside, we see a potential trend. Maybe people like us -- and not our students -- should have these jobs. Hey, take me!