Posted by Orin Kerr:
A Legitimate Concern With Allowing Amicus Briefs on Behalf of Retired Judges:
http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167431851
I tend [1]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, [2]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.
References
1. http://volokh.com/posts/1167427787.shtml
2.
http://www.jenner.com/files/tbl_s18News/RelatedDocuments147/2632/Guantanamo.Amicus.Brief.pdf
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