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.
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These are retired judges. Seems fair to me that they ought to be able to participate like any other private citizen. And that's what the rejection seemed to imply: they could resubmit the brief striking the mention that they are former judges. That also seems appropriate to me. Other than their presumption that their opinions are more important than someone elses, nothing in the brief hinges on their judicial experiance.
Judges regularly cite blogs in their opinions. Why not cite to online briefs that directly concern the case?
It's better practice just to let people file amicus briefs and to give them the weight they deserve.
It seems like the Judges easily satisfied this rule. Their position is that, as Judges, they have a particular (if not neccessarily substantial) interest in the preservation of their profession. They are writing qua retired judges, not qua private citizens, and if the Court wants to reject on those grounds, they should at least have the decency to make a ruling that clearly shows why that interest is insufficient." This is an amicus curae brief, not a Lujan standing question.
The chance that John Marshall, Oliver Wendell Holmes Jr., and Robert Jackson, returned from the grave, could affect Sentelle's mind on the MCA, is ... slight, methinks.
I think the order was wrong, but there's no reason to further delve into the ad hominen.
It is ironic, at best, however, that the majority chose this occasion to invoke the federal advisory opinion. Looking at the brief, the former judges don't actually use their titles other than as description -- that being relevant to a statement of their claimed status as amici. So it seems pretty petty to toss the brief on that basis.
Anyhow, most of us probably remember the repeated references to "Judge Starr" in the course of the Whitewater investigation. I recall him being addressed that way when he testified in the Senate. And who appointed Mr. Starr? And do you recall who appointed Mr. Starr as Independent Counsel? Why, it was Judge Sentelle (as part of a special panel).
I would think on a question of constitutional due process, everyone would have a substantial interest. Regardless, I don't see much point in filing the brief, except to put your name out there on the public record. And while I haven't read many details of the case, I doubt there's anything in the brief that's particularly earth shattering.
Please delete my comments. Having thought about it for more than two minutes, a sitting Circuit Judge deserves more respect than that. I have criticized others for ad hominem attacks on sitting Judges so I should live by that too; further my opinions are really directed at Dean Starr more than Judge Sentelle. Feel free to ban my account from further commenting as I will be taking a break regardless. I need to chill.
GC
No one is perfect - and we don't expect you to be. What I think we all like to see, however, is people who passionately and honestly argue their position. I don't personally comment often, but I've read many of GC's, and despite my disagreement with most of them, I think his 3:53 comment stands out as showing that you can make mistakes as long as you honestly recognize them.
GC: For what it's worth, you are one of those I keep coming back to read. A break may be good, but I look forward to reading you again. Kudos again for the maturity that is so often absent in contemporary discussions. I hope that the next time I say something foolish, I'll have as much guts to own up and admit it.
As someone who clerked for Judge Sentelle, I believe he is a man with tremendous integrity and honor. Those who know him would surely agree, He is a man with strong opinions and judicial views, to be sure, but also one who takes his judicial oath very seriously. It is unfortunate that his appointment to the special panel overseeing independent counsels led to so many inaccurate and malicious attacks on him.
JHA