Posted by Eugene Volokh:
What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?
http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167427787
Maybe I'm missing something, but I just don't get the thinking behind
the [1]D.C. Circuit decision rejecting [2]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 [3]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?
References
1. file://localhost/var/www/powerblogs/volokh/posts/1167427787.html
2.
http://www.jenner.com/files/tbl_s18News/RelatedDocuments147/2632/Guantanamo.Amicus.Brief.pdf
3. http://www.uscourts.gov/guide/vol2/72.html
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