Posted by Jonathan Adler:
*NYT* on Judicial Amicus Brief Rejection:
http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167500289
The N.Y. Times [1]reports on the D.C. Circuit's rejection of an amicus
brief filed by retired judges. The article suggests politics played a
role in the rejection.
David B. Rivkin, who was an official in the administrations of
Ronald Reagan and the first President George Bush, said he detected
a political undertone.
�It certainly tells you,� Mr. Rivkin said, �how at least some of
the D.C. Circuit judges feel about the anti-Bush-administration
judicial activism by their former colleagues.�
The two judges who rejected the brief, Sentelle and Randolph, were
Republican appointees, while the dissenting judge, Rogers, and some of
those on the amicus brief were Democratics appointees. One of the
brief's signatories suggested personal animus explained the decision.
[Former Judge Abner J.] Mikva said the rejection of his brief was
motivated by personal animus, not politics. �It�s not political at
all,� he said in an interview. �This was clearly aimed at me.�
The judges in the majority, Mr. Mikva said, were furious with him
because he opposed allowing judges to accept free trips to resorts
for seminars sponsored by private groups.
There's no question that many federal judges object to Mikva's support
of a campaign against privately funded judicial education seminars,
particularly given some of the inaccurate and outrageous claims made
in the course of that campaign. That said, I find the idea that either
Judge Sentelle (for whome I clerked) or Judge Randolph (who was a
professor of mine) would base their decision on such sentiment.
Correctly or not, I think it clear that Judges Sentelle and Randolph
believed that Mikva and the other judges on the brief were
inappropriately using their status as former judges in an effort to
influence the case.
Experts in legal ethics were divided over yesterday�s ruling.
Ronald D. Rotunda, a law professor at George Mason University, said
it was an unexceptional application of a sensible policy.
�There is no particular reason why former judges should be able to
leverage their titles in litigation,� Professor Rotunda said.
Stephen Gillers, a law professor at New York University, disagreed.
�It�s more than petty,� Professor Gillers said of the brief�s
rejection. �It�s unnecessary and insulting.�
He added that the objection was an empty formality, as former
judges remain free to submit briefs if they omit references to
their prior judicial service.
Whatever its basis and wisdom, yesterday�s order probably indicates
that a ruling in the underlying case is near. In a 1994 libel case,
a panel including Judges Mikva and Wald rejected a supporting brief
that Kenneth W. Starr, a former judge on the court, had tried to
submit on behalf of several news organizations. The panel decided
the libel case the next day.
References
1.
http://www.nytimes.com/2006/12/30/washington/30judge.html?ex=157680000&en=ae6c3d9ce165dd02&ei=5124&partner=permalink&exprod=permalink
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
