A Legitimate Concern With Allowing Amicus Briefs on Behalf of Retired Judges:
I tend to agree with Eugene that it was ill-advised for Judges Sentelle and Randolph to reject the amicus brief filed on behalf of the retired judges in one of the pending Guantanamo cases. At the same time, I think there's a significant institutional reason a court might want want to limit such briefs that may explain the court's action.
The key, it seems to me, is that most retired judges who put their names on amicus briefs probably have little or no involvement in the writing of the briefs. In this case, for example, the cover page of the brief suggests that it was written by lawyers at two private law firms. I don't know if the retired judges who were the clients in this particular case were actively involved in discussions about what the brief said. But I would imagine that in most cases, the judges won't have much involvement at all. This is certainly how it works with law professor amicus briefs. In my experience, most professors who put their names on amicus briefs have at best a passing familiarity with the arguments filed in their names.
If I'm right about that, briefs filed on behalf of former judges normally won't be filed to give the court the benefit of "many years of high-level experience with the judicial system" that the judges have. Rather, the briefs will be authored by some law firm attorneys with no particular experience, filed with the retired judges' names on the cover simply to get some extra attention to the lawyers' views. I personally don't have a particular problem with that practice. But I can imagine that if you're a sitting judge, you might not think it appropriate for retired judges to try to use their former positions in that way. It's a bit artificial, given that they didn't actually write the briefs, and at worst it can encourage lawyers to see who can find the most prestigious retired judges for their side. ("Wait, they have Wald and Mikva? Quick, someone call up Starr and Bork!!!") It may be better to discourage this sort of practice and have the lawyers file their amicus briefs without the attention-getter of retired judges on the cover.
Of course, this is only one institutional interest competing with others, which is why I ultimately think it was probably ill-advised to reject this brief. But I think there is a substantial concern there that may help explain the panel's decision.
The key, it seems to me, is that most retired judges who put their names on amicus briefs probably have little or no involvement in the writing of the briefs. In this case, for example, the cover page of the brief suggests that it was written by lawyers at two private law firms. I don't know if the retired judges who were the clients in this particular case were actively involved in discussions about what the brief said. But I would imagine that in most cases, the judges won't have much involvement at all. This is certainly how it works with law professor amicus briefs. In my experience, most professors who put their names on amicus briefs have at best a passing familiarity with the arguments filed in their names.
If I'm right about that, briefs filed on behalf of former judges normally won't be filed to give the court the benefit of "many years of high-level experience with the judicial system" that the judges have. Rather, the briefs will be authored by some law firm attorneys with no particular experience, filed with the retired judges' names on the cover simply to get some extra attention to the lawyers' views. I personally don't have a particular problem with that practice. But I can imagine that if you're a sitting judge, you might not think it appropriate for retired judges to try to use their former positions in that way. It's a bit artificial, given that they didn't actually write the briefs, and at worst it can encourage lawyers to see who can find the most prestigious retired judges for their side. ("Wait, they have Wald and Mikva? Quick, someone call up Starr and Bork!!!") It may be better to discourage this sort of practice and have the lawyers file their amicus briefs without the attention-getter of retired judges on the cover.
Of course, this is only one institutional interest competing with others, which is why I ultimately think it was probably ill-advised to reject this brief. But I think there is a substantial concern there that may help explain the panel's decision.
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:
Amicus briefs are either useful or harmless. If they are useful, it's because their reasoning is persuasive. If they are not useful, judges are under no obligation to read them.
As I said in the comments to the original post, the brief is now available to the judges and clerks reviewing the case. By prohibiting the amicus, the judges only hamstring the government attorneys because it will be more awkward for them to respond to arguments in a brief that they have to pretend doesn't exist.
And refusing to allow retired judges to file an amicus brief just makes the panel's majority appear small-minded and petty.
Given the almost certain insignificance of this amicus brief to the court's consideration of the issues (or anything else), the decision to reject the brief has more in common with kabuki than any substantial judicial concern. The only point on which I disagree with Orin Kerr's post is his suggestion that there is some "substantial concern" in play here. It all seems petty and personal; every aspect of the kerfuffle involves small stakes and minor matters. And whether they took the brief or rejected it, the chance that it would have made any difference to the outcome was always vanishingly slight.
The client who seeks a lawyer to file an amicus brief has no ethical obligation to read the brief.
This sounds like a reason to reject more law professor briefs.
How do law professor briefs typically come to exist, in the real world? Am I wrong to assume that, at the very least, it's the law professors who seek out counsel to write a brief on their behalf, and not the other way around? If so, do they at least explain "here are the arguments we'd like you to make for us," or do they simply say "we want to come out in favor of this party, go find the argument yourself"?
The overall point of this post certainly makes sense to me, although in a world where counsel typically writes the expert reports it seems an odd place to start drawing the line. I once litigated a case where the substantive issue involved interpretation of the Disciplinary Rules, and opposing counsel had the audacity to drop a footnote as to how he had 40 years of experience litigating legal ethics issues, served on such and such Bar committees, etc. If he wasn't married to the judge's boss, maybe he even would have been admonished for seeking to qualify himself as an expert.
People hire lawyers (outside counsel) to write their briefs for them, and nobody thinks there's anything wrong with that. Why should we have a special rule for retired judges or law professors?
[OK Comments: Jason, your analogy is a poor one for two reasons. First, the element of mispresentation is missing. Everyone knows that a brief filed for a corporation does not represent the collective wisdom of the corporation throughout the ages; in contrast, most reporters and many law clerks think that a brief filed for retired judges really does reflect their collective wisdom. Second, current and former judges are bound by special ethical rules, enforced by courts, that do not apply to corporations. Given that, enforcing a rule that applies only to judges to avoid a mispresentation isn't inconsistent with having a different standard for corporations that aren't bound by the same rule. Of course, you may find the Court's action unpersuasive, as, ultimately, do I. But I don't think the argument is "ridiculous."]
Okay, Prof. Kerr, here's a better analogy: what you say is true of many, if not most, appellate opinions.
Should judges not put their names on those, either? Or does their being *sitting* judges somehow make a difference?
Is this a normal sort of salutation for amicus briefs, where the cover page says who the alleged friends are?
How old are these people? Maybe they are 1. bored in retirement and 2. disconcerted by their lack of status in their retired lives.
JEREMIAH HEALY, ELMORE LEONARD, HARRY SHEARER, RON SHELTON, SCOTT TUROW, PAUL WEITZ, AND THE AUTHORS GUILD, INC. IN SUPPORT OF PETITIONERS. A considerable part of the point, of course, was to catch the reader's attention with the interesting names, and to suggest that the brief, which presented the perspective of authors on a certain right of publicity issue, was worthy of attention because it represented the view of experienced and respected writers. (It didn't work, unfortunately, but I still think it was a worthwhile effort.)
"Ridiculous" was certainly a poor choice of words on my part. I withdraw it and offer my apologies. Better I had said "This strikes me as an incorrect argument."
I stand by that, because notwithstanding your counterargument, I still think it is incorrect that ascribing the brief to retired judges will mislead people. As I understand it, your first counter to my analogy is that everyone knows that corporations have people to do these things for them, but people assume law professors and judges do for themselves.
But people (including corporations) get their name on amicus briefs in one of two ways. First, the amici approach lawyers and explain that they want to file an amicus brief on behalf of (in this case) the Guantanamo detainees. Second, lawyers for one of the parties will approach them and ask if they will be willing to put their names on an amicus brief. In either case, the amici are making the decision to submit an amicus brief taking a particular position.
Now, how much they get involved in the drfating and editing and reviewing is up to them, but at the end of the day, when that brief gets field in court, it is their position (simply by virtue of what an amicus is) and the amici know it is their position. If the retired judges didn't read the brief carefully and it turns out that page 34 suggests that all retired judges should themselves be shipped off to Guantanamo -- well, too bad for the retired judges, but that is the position they have taken.
In any event, the title page of the amicus brief clearly states that the brief was authored by Joe Appellate at Lincoln &Douglas LLP, not by the Honorable John Q. Gavel (ret.) -- just as the title page of Acme Consolidated's brief explains that Acme Consolidated hired a law firm to write its brief. Both Gavel and Acme (through its law department) have as much or as little say into the specifics of drafting the brief as they want. Certainly, if Gavel feels like he has special experience that bears on the issue -- and one would hope he does, or why file amicus -- he should make sure his input goes into the brief. But the same holds true for Acme. From a normative viewpoint, I don't see why one should be treated differenty from the other.
Which brings me to your second objection to my analogy -- that regardless of the policy reasons, there is a canon of judicial ethics that says we should treat them differently. I don't know enough about the canons to comment on that, but this strikes me as somewhat begging the question. The question, as I understand it, is whether we should be treating retired judges differently from other amici, not whether we do treat retired judges differently.