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.