Appeals Court Rejects Brief Submitted by Ex-Judges

Seven former federal judges were told yesterday that their views were not welcome at the federal appeals court in Washington.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit, which will soon decide an important case concerning detainees at Guantánamo Bay, Cuba, rejected a friend-of-the-court brief submitted in the case by the retired judges. Two former chief judges of the court were among those rebuffed.

The unsigned majority decision, for Judges David B. Sentelle and A. Raymond Randolph, said the brief violated a 1982 advisory opinion from a committee of the Judicial Conference of the United States, which is the administrative and policy-making body of the federal court system.

“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,” the advisory opinion said.

Briefs by former judges supporting one side or the other in significant cases are relatively common. The brief rejected yesterday urged the appeals court to allow Guantánamo detainees to challenge their detentions notwithstanding a new law, the Military Commissions Act, that the government says now bars the courthouse door.

Judge Judith W. Rogers dissented. She said the 1982 advisory opinion was meant to address situations in which former judges acting as lawyers are referred to by the honorific title “Judge.” That practice, if allowed in court, could improperly influence juries, confuse people and make parties to lawsuits lose confidence in the judicial system.

But the situation here, with former judges submitting an appellate brief on their own behalf and with the government’s consent, is different, Judge Rogers wrote. “Indeed, denying the unopposed motion for leave to file may itself create an appearance of partiality,” she wrote.

Details here from Adam Liptak of the New York Times. The Court's Order is here. Bashman has commentary here and here, while Jonathan Adler comments here.