In November, a group of seven retired federal judges (including two former D.C. Circuit judges who spent a combined 35 years on that court) filed an amicus curiae (friend of the court) brief in a case pending before the D.C. Circuit Court of Appeals. The brief was filed in support of challenges to the detentions of so-called "enemy combatants" under the Military Commissions Act recently passed by Congress, and argued that evidence obtained through torture should not be used against the detainees. The former judges stated in their brief that “to sanction Executive detentions based on evidence [that was secured through torture and] that has been condemned in the American legal system since our Nation’s founding erodes the vital role of the judiciary in safeguarding the Rule of Law.”
Last Friday, Judge Sentelle (Reagan) and Judge Randolph (Bush I) of the D.C.Circuit rejected their brief in a short order. Their decision was based on an ethics rule providing that the title of "judge" should not be used to describe former judges involved in litigation.
Judge Rogers (Clinton) dissented from the order. She debunked the majority's rationale, stating that the code on which it relied was plainly designed to avoid the appearance of partiality only in "the situation when a former judge appears as counsel." In this case, Judge Rogers pointed out, the judges were themselves represented by private counsel. (As Eugene Volokh observed, application of this ethical rule was inapt because "[t]he 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.") Moreover, these retired judges were denied the same routinely-granted right as other interested people and organizations to file amicus briefs: "Indeed, denying the unopposed motion for leave to file may itself create an appearance of partiality."
One also cannot help but wonder what kind of judges (dare we say, ones of no little arrogance) would thumb their noses at the views of their former colleagues on the federal bench in a case of surpassing national importance.