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.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.
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
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?
Related Posts (on one page):
- NYT on Judicial Amicus Brief Rejection:
- Retired Judges Filing Amicus Briefs:
- A Legitimate Concern With Allowing Amicus Briefs on Behalf of Retired Judges:
- What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?
- D.C. Circuit Rejects Retired Judges' Amicus Brief: