Fifth Circuit on Amicus Briefs by Retired Federal Judges
Three retired federal judges [Judges Alex Kozinski, F.A. Little, Jr., and Michael Mukasey] seek leave to file a brief in this case as amici curiae. The defendant vigorously opposes their motion, citing precedents from two other circuits that categorically exclude amicus briefs such as this….
I nevertheless grant the motion. Our circuit, like the Supreme Court, does not categorically exclude amicus briefs such as this. And if there is something wrong with this particular amici effort, we can judge the brief on its merits—there is no need to exclude it from these proceedings altogether….
[1.] In Boumediene v. Bush (D.C. Cir. 2006) (per curiam), the D.C. Circuit by a 2-1 vote denied leave to a group of retired federal judges who sought to file a brief as amici. In doing so, the majority invoked a 1982 advisory opinion, issued by the U.S. Judicial Conference Committee on Codes of Conduct, that forbids references to individuals as “former judges” in court proceedings. The advisory opinion states that “‘[j]udges 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.'”
In her dissent, however, Judge Rogers responds that the advisory opinion applies only “when a former judge appears as counsel,” and not as amici. The advisory opinion expressly applies only to “former judges who have returned to the practice of law” and who are “actively practicing in federal courts.” Moreover, the advisory opinion is explicitly premised on the concern that “[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.”
To be sure, reasonable minds can disagree over whether the logic of the advisory opinion still applies when a retired judge participates as amici, rather than as counsel. A case could be made that it undermines confidence in the judiciary if a litigant is forced to face an adversary supported by any person who “is called ‘Judge'”—regardless of whether that person serves as opposing counsel or merely as opposing amici.
That said, there is an obvious difference in quantity (if not in quality) between a single adverse amicus brief, on the one hand, and having to face off against a former judge, day in and day out, in writing as well as in the courtroom, throughout the entire course of the litigation, on the other hand.
Perhaps that is why, in the wake of Boumediene, the Supreme Court not only continues to accept amicus briefs filed by retired federal judges, but even quotes them from time to time in judicial opinions. See, e.g., Terry v. United States (2021) (Sotomayor, J., concurring in part and concurring in the judgment) (quoting amicus brief of retired federal judges); California Public Employees’ Retirement System v. ANZ Securities, Inc. (2017) (Ginsburg, J., dissenting) (same); Aurelius Capital Management, L.P. v. Tribune Media Co. (2016) (granting leave to former federal judges to file brief as amici); Hamdan v. Rumsfeld (2006) (same).
In fact, the Supreme Court accepted an amicus brief from a group of former federal judges in Boumediene itself. See Boumediene v. Bush (2008) (listing amicus brief of former federal judges). Even the D.C. Circuit on various occasions has accepted amicus briefs from former federal judges, notwithstanding its earlier decision in Boumediene. See, e.g., In re Flynn (D.C. Cir. 2020) (listing amicus brief of former federal district judges); In re Leopold (D.C. Cir. 2020) (listing amicus b
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