pageok
pageok
pageok
What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?

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.

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

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.

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?

Steve:
I wasn't aware any explanation other than "Judge Sentelle" was required.
12.29.2006 4:34pm
Tennessean (mail):
1. It strikes me that you do "see the logic," i.e., understand the argument, but that you disagree with it. (A minor quibble, perhaps.)

2. You seem to suggest that the advisory opinion would bar admission of the brief so long as its understood as applying in this context ("there's no reason to apply it literally to this conduct" suggests, at least tentatively, that applying it literally, i.e., following the rule, would result in barring the admission of the brief).

3. That suggestion seems correct: "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."

Here, the term judge was (apparently) used in papers involved in litigation to designate a former judge, and there is no suggestion that the designation is "necessary" to describe accurately a person's status at a time pertinent to the lawsuit.

(Of course, a fellow could make arguments that "former judge" and "judge" are not the same term, that "former judge" does not include the term "judge," and that the designation is necessary in this case. Those issues I side-step for now.)

3. So, your counter argument succeeds if it shows that the rule should not be considered in this context. The rule itself provides no specific direction that it should so be limited. Instead, your argument that it should not be applied literally is based upon application criteria which are in turn based upon your reading of the reasons for the rule. However, I submit you have misread the rule, especially as your argument centers on the risk of confusion.

The stated purpose of the rule is to protect against the "los[s] [of] a degree of confidence in the integrity and impartiality of the judiciary" and the risk of "demean[ing] the court as an institution." Those risks are exactly the risks at issue here: should judges be permitted to act as advocates using the authority and respect granted the position of judge?

You argue that "The views of respected former judges ... how the judicial system should handle certain kinds of cases should indeed attract special attention." As a factual matter, that may or may not be true. However, this rule, it seems to me, is intended to limit such input and to limit the manner permitted to convey such input.
12.29.2006 4:58pm
John (mail):
" They may also hope that the public and the bar will pay such special attention as well."

Yes, indeed. The last thing the judges deciding these issues need is a group of publicity seekers trading on their past association with the courts. Let them write their brief on the NYT op-ed page.

Do you think their brief actually adds anything to the controversy? Any new arguments here? Or just politics and press relations?

I may be too cynical, but I think the judges who have to decide this probably had a "what the hell is this" reaction, followed quickly with a well deserved, "butt out."
12.29.2006 5:01pm
anonVCfan:
I'll note that the title of the brief referred to the amici as "retired federal jurists"

Seems to me that that should clear up any etiquette concerns. I wonder whether the judges are actually concerned about the propriety of retired federal judges "lobbying" current federal judges and think that it's different in kind from the typical amicus brief.

Every time this sort of thing comes up, I reread Judge Posner's take on amicus briefs.
12.29.2006 5:09pm
CM:
Gene, I'd say the reason the amici identified themselves as retired federal judges is because they believe that status makes their arguments more valid than other amici or the parties. You might agree; however, the Advisor Opinion wants to discourage retired judges from invoking that status to provide additional credence to their argument. The retired judges attempted to do just that.

Amici briefs on behalf of groups of law professors or law students are annoying. Amici briefs on behalf of jurists, be they active or retired, is unseemly. The retired jurists were blessed with the unique opportunity to interpret our laws. Once they give up that role, they should gracefully remain mute and allow their former brethren to do their jobs. If a judge wants to continue to write about what the law is, then he shouldn't retire.
12.29.2006 5:10pm
anonVCfan:
CM, do you mean that retired federal judges shouldn't go into private practice or write law review articles?
12.29.2006 5:15pm
Steve Lubet (mail):
The purpose of the advisory opinion is to prevent former judges from taking unfair advantage of the title, not to prevent them from ever mentioning the fact that they were once judges. The rejection of the amicus brief might (or might not) be justified for many reasons, but the reference to the judges' previous positions is not one of them.

As I mentioned in a comment to the earlier post on this subject, it did not appear to bother Judge Sentelle when Kenneth Starr was called "Judge Starr" throughout the Whitewater investigation.
12.29.2006 5:28pm
Eugene Volokh (www):
Tennessean: My point in the last paragraph is that Advisory Opinion No. 72 isn't a "rule" to be followed to the letter. It's an opinion (not even a precedentially binding opinion) that rests on a certain line of reasoning; when the reasoning doesn't apply, the opinion ought not be seen as having persuasive weight.

John, CM: Perhaps some may see amicus briefs as "annoying," but they are a longstanding and expressly authorized part of judicial practice. One would think that amicus briefs representing the views of eminent former judges would be especially useful to courts — or at least wouldn't merit categorical rejection. Nor is there anything wrong with relying on one's past accomplishments to provide additional credibility to one's arguments; people's past accomplishments and experiences are part of what we look to when evaluating their arguments' credibility. And to the extent that a court finds the retired judges' accomplishments and experiments not to be particularly impressive in this context, the remedy is to give the brief the credit that the panel thinks is due (which may just be the credit flowing from the arguments' inherent persuasiveness), not to categorically reject the brief.

Note, incidentally, that nothing in the Advisory Opinion bars retired judges from practicing law, or persuading clients to hire them because of their experience. In certain contexts their use of the title "judge" may be harmful to the legal system, for instance when they're arguing in front of a jury of laypeople. But it's hard to see how an amicus brief filed in front of a D.C. Circuit panel, which can surely tell a retired judge (expressly denominated a "retired judge" and "former judge" in the brief) from a current judge, is one of those contexts.
12.29.2006 5:32pm
18 USC 1030 (mail):
Doesn't AG Gonzalez still refer to himself as Judge? I think this a far greater issue that "retired jurists" using that designation on a brief
12.29.2006 5:35pm
Anderson (mail) (www):
Judge Sentelle's nature aside, it is very, very difficult to see the order as stemming from anything other than an aversion to the amici's stance on the merits. The court would have done much better to allow the brief and then to rule as it thinks the merits dictate.
12.29.2006 5:39pm
donaldk2 (mail):
Why don't the retired judges simply offer their services gratis to the counsel for the client they favor?
12.29.2006 5:48pm
A.S.:
Maybe I'm missing something, but the sentence in this part of the Advisory Opinion is correct: 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.

This seems to me to be as valid where the ex-judges are amici on one side as where an ex-judge is one party's counsel.

The concern is the appearance that the current judges will give improper weight to the ex-judges not as a result of the ex-judges' legal acumen or experience on the bench, but becuase the current judge wants the same courtesy when he becomes as ex-judge. It is the appearance that current judges are looking out for the interests of ex-judges now so that in the future they will be similarly looked out for. And while removing the title "judge" from the signatures of the brief don't help substantively with that concern, it does potentially remove the appearance issue.
12.29.2006 5:48pm
John (mail):
Eugene,

I'm probably making a mountain out of a molehill here, but I will say the following:

1. I've been in plenty of cases with amicus briefs, usually (actually, always) filed by some group or another that would be affected by the outcome in the future. E.g., newspapers filing amicus briefs in cases where reporters' privileges are at stake. This brief does not really fit that bill. Here's the statement of the interest of the amici from the brief:

"The issue presented by these consolidated cases challenges the integrity of our judicial 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? As former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation's founding erodes the vital role of the judiciary in safeguarding the Rule of Law. Therefore, pursuant to Federal Rule of Appellate Procedure 29 and this Circuit's Rule 29, amici respectfully submit this brief in support of Petitioners Al Odah, et al. and Boumediene, et al."

2.These "retired federal jurists," as they describe themselves, no longer have any interest in the federal judiciary that exceeds that of any other citizen. The only reason to accept their brief (at least a reason based on their interest in the matter) is because they are trading on their status as former judges.

3. I grant you that if the courts take into account not just the interest of the proposed amicus, but his or her experience or knowledge (and I don't think they do unless the interest is first shown), then you would have a point, except that in this case there is no evidence their wisdom or experience is being used. The brief was written by law firms based on the record which contains no input of the amici's magical knowledge. Again, it follows that what this brief would bring to the table is nothing more than the judges' titles and whatever respect they want the reader to give them.

4. I certainly respect these judges, but if you change their names to men and women on the street, there is no reason for the court ever to take this brief; their interest in the matter today is no different from people on the street; and the sole reason that can thus be offered why their brief should be accepted is their status as former judges. I can understand the court's reluctance to let that be a factor.

5. I'm sure you know a lot of appellate judges. I'd be interested if you survey them for what they think of all of this.
12.29.2006 6:13pm
A.S.:
Also, I disagree with EV's conclusion that the amici's "past experience as judges" has anything to do with this case. It seems to me that their past experience as judges is completely irrelevant to the legal argument. If there is any relevance, it is political, not legal, and therefore not the province of the court here. Indeed, if you read the ex-judge's amicus brief here, their past experience is not mentioned in the legal argument anywhere at all.

I could accept the idea that a ex-judge's is relevant on an amicus brief if that judge's experience as an ex-judge had anything to do with the case (hence the exception in the Advisory Opinion). But where the ex-judge's past experience is completely irrelevant, there is no reason to depart from the Advisory Opinion.
12.29.2006 6:26pm
Steve:
As the dissent clearly points out, FRAP 29(a) doesn't even PERMIT the court to deny leave under these circumstances. Nor does the text of the Advisory Opinion address anything other than the use of the word "Judge" as a title, which simply didn't occur here.

Judge Sentelle's nature aside, it is very, very difficult to see the order as stemming from anything other than an aversion to the amici's stance on the merits.

The same might be said of a number of comments in this thread. I'm sure we'd see the exact same cast of characters if Judge Reinhardt had tossed out an amicus brief from a group of conservatives, right?

And while removing the title "judge" from the signatures of the brief don't help substantively with that concern, it does potentially remove the appearance issue.

Here's a good example of someone who is so open-minded that he just makes up facts. The brief is not signed with the title "Judge," or even signed by the retired judges at all. In fact, while the retired judges are obviously identified as such, they do not use "Judge" as a title anywhere in the brief.
12.29.2006 6:51pm
wm13:
Prof. Volokh's reasoning seems very wrong to me. If retired federal judges have some valuable experience to impart, that experience relates to factual matters which should be part of the record on appeal, not the subject of an amicus brief. It would be totally improper for a party in an appellate proceeding to proffer evidence relating to, say, the practicality of judicial administration of a particular item, because the evidence ought to have been introduced in the original proceeding. And for the retired federal judges to offer their "unique" insights in an appellate proceeding results in the exact evil the ruling seeks to prevent: how is the opposing side to counter arguments of the "Your Honor, you and I, based on personal experience, know . . ." variety?
12.29.2006 7:11pm
Steve:
how is the opposing side to counter arguments of the "Your Honor, you and I, based on personal experience, know . . ." variety?

It's hard to argue there's a lot of unfairness to the opposing side here, given that the opposing side didn't even oppose the filing of the amicus brief.
12.29.2006 7:24pm
John Noble (mail):
The Court's rationale and reliance on the Advisory Opinion strikes me as a pretext, but I can't see why "the views of respected former judges ... about how the judicial system should handle certain kinds of cases" warrants "special attention because they come from people with many years of high-level experience with the judicial system." That experience might be important, and the brief useful, if the issue related to the administration of justice, e.g. judicial economy or competence; but, here, the title seems only to lay claim to special attention because they are special people. Their stated interest in the case:

"As former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation's founding erodes the vital role of the judiciary in safeguarding the Rule of Law.

In what way do the beliefs of former federal judges assist the court in deciding the case? How does the court weigh their beliefs against those of former generals concerned about the erosion of executive authority in "safeguarding National Security." Is this case sui generis, or is there a broader role for former federal judges to line up on either or both sides of a case that involves the "vital role of the judiciary"? Indeed, aren't the views of former federal judges actually likely to be more useful on any given petition for cert than on the question presented in this case? They could speak with real authority on the uncertainty of the law, and the advantages of resolution.

It seems to me that this brief simply trades on professional celebrity and appeals to political affinity, neither of which properly assists the court in deciding the case.
12.29.2006 8:06pm
Steve Lubet (mail):
It would be interesting to see which, if any, amicus briefs were accepted by the court.
12.29.2006 8:17pm
c.f.w. (mail):
These issues are not sui generis - that is the point the former judges bring out implicitly (though they should have expressly explained in detail how former judges might have more useful contributions to brief about than the man on the street). The Bush approach is to focus on the unique GWOT and deny that any traditions need to be (or should be) considered. Hopefully the former judges will propose a revised brief that details "standing" to be amicus a bit more completely, etc.
12.29.2006 10:26pm
Eugene Volokh (www):
wm13: The answer to your objection, it seems to me, lies in the distinction between "adjudicative facts" (the facts of a particular case, which must be determined at trial) and the somewhat misnamed "legislative facts" ("a fact of general social, economic, or scientific relevance that does not change from case to case"). See, for instance, this reference, among others; this is a complicated distinction, but an important and well-established one.

Among other things, this is why courts often value amicus briefs that stress the authors' practical experience -- for instance, in a First Amendment case in which a court is deciding whether some proposed speech restriction would have too much of a "chilling effect," an amicus brief from experts in media law about the actual chilling effect of such restrictions would likely be quite valuable. The brief will use facts (or, rather, its signers' characterization of the facts) as a way to argue for a certain legal result, but it will rely on their general knowledge and experience rather than their knowledge of the facts of this praticular case (which, as adjudicative facts, must indeed be proven at trial rather than introduced in an amicus brief).
12.29.2006 11:11pm
Joel B. (mail):
I respectfully disagree with Prof. Volokh with his willingness to accept retired judges filing amicus briefs. Maybe this is just my youth and inexperience talking, but the way I see it, it's about how you view life.

Some people seem to have the opinion that you should be much more free to do when you want and on the timeline you want. So, if someone wants to become a federal judge for 10 years and then "retire" (remember that generally means to stop working), but then go back to work, more power to them. As a result, why shouldn't the ret. judge be able to work as a retired judge and advocate as an attorney? Which is a fair point, from this point of view with which I disagree. This point of view also seems to take an undo button view of life. That one should be able to undo the choices they make if hey they didn't turn out like you wanted.

As a non-baby boomer, I take a decidely different approach. What you do at certain points of your life does affect your ability to do other things as you get older. So, for example, ex-presidents should go around giving lectures or whatever, but should not go around lecturing current presidents or conducting diplomacy (without the blessing of the current president) with foreign nations. That is, once you do something and/or retire, you don't get to do what you used to or want to anymore. If you retire as a federal judge, you really probably shouldn't be practicing federal law. To my knowledge, Sandra Day O'Connor has respectfully stayed out of the limelight since her retirement. As she should. So should these judges, now, if they want to practice at the state level, or go into teaching or whatever more power to them. However, to my mind once you retire from the bench the graceful thing to do is actually retire, and not go back to work as an advocate. A judge, is no longer an advocate but an arbitrator, and the judge as a result, even once he/she retires she not reassume the role of advocate it's just inappropriate.
12.30.2006 1:51pm
Bill Dyer (mail) (www):
What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges.

If some entity had hired all these former judges to sign off as co-counsel of record on an amicus brief, in which they were clearly appearing as ordinary advocates rather than pseudo-principals, that would have been another thing altogether. Whatever additional dignity their past histories might lend to their arguments would be implicit at most.

Instead, their brief's statement of interest claims that

[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation's founding erodes the vital role of the judiciary in safeguarding the Rule of Law.


Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit -- and indeed, in that latter respect it appears to have backfired rather badly, eh?

I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; let them sign on with a simple "Esq." title if they want to return to legal practice as counsel of record. Per Chief Justice Roberts' observations about judges as "honest umpires," we don't invite all ex-Major League Baseball umps onto the playing field to critique and second-guess the officials whose current job it is to call the balls and strikes.
12.30.2006 1:56pm
SJN:
How can a "retired jurist" have any greater interest in the prevention of torture than any other citizen? Plainly these retired judges are throwing their weight around, and the court rightly called them on it (even if the rule doesn't address the situation neatly).

If they wanted to write a brief on behalf of a legitimate amicus organization, super, and let them put their names on the cover (without the "Hon."). Larry Tribe's and Eugene Volokh's briefs don't need the word "Professor" on the cover to be read and taken seriously; the scholarship and skill of the argument speaks for itself.

When I was clerking on the Fourth Circuit, we had a situation where at the last minute a litigant engaged a retired judge of the court to conduct oral argument after the date had already been set. The litigant requested a continuance of the hearing to accommodate "new counsel's" schedule. The court rejected the request, and many of the judges were offended by the suggestion that the case might be decided on the "it's not what you know but who you know" principle, rather than on its merits. This is an exceptionally collegial court (the judges descend from the bench to shake hands with the attorneys after oral argument), and the judges were super-sensitive to the risk that they could be seen as too familiar with one of their former colleagues.

The true test of the merit of the amicus brief at issue here would be to submit it on behalf of an anonymous citizen, from an unknown law firm, and to see if the arguments in it carry the day.
12.30.2006 2:10pm