Ex-judges as "friends of the court"

I've only worked on a few amicus curiae appellate briefs. That Latin phrase literally translates to "friend of the court." It generally "refers to someone [who, although] not a party to a case, [nevertheless] volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it."

But long ago, when I was a young associate at Baker Botts, I was instructed to show up at a rather odd hearing before then-state district judge (now federal district judge) Lynn N. Hughes that involved a piece of property in which our client, Rice University, had a potential interest.

"Be careful that you don't enter a formal appearance in the case on behalf of Rice as a party-litigant," I was firmly instructed by the partner who gave me the assignment: Rice didn't want to be perceived as, and in fact was not being, particularly eager or greedy, and neither did it want to align itself with or against any of the actual litigants.

"But how should I identify myself to Judge Hughes?" I asked.

"Think of something," was the answer, "Just don't enter a formal appearance that turns Rice into a named party or otherwise gets it stuck forever in this lawsuit."

This set me to gnawing my bottom lip as I trudged over to the courthouse. I spent a good ten minutes debating whether to sit inside or outside the rail (i.e., with the other lawyers or with the audience). I spent another five minutes wondering whether I should leave a business card with the court reporter (which is normally an essential courtesy), and if so, what I should write on it to indicate who I represented, and in what capacity.

I finally decided to sit inside the rail, and to hand over, but write nothing on, my card. I introduced myself to the other lawyers before the judge entered the courtroom, and I told them who I represented, but I didn't say anything about exactly why I was there.

The hearing began soon thereafter, and once the lawyers for the litigants had identified themselves on the record, I stood up and nodded to Judge Hughes — signaling (still without speaking on the record) that I wished to be recognized. (He knew my name from an unrelated case on which I'd recently appeared in his court.) "Mr. Dyer," he intoned, "do you represent a party to this matter?"

I'd decided that the best I could do in answering that question was to repeat pretty much what I'd been told: "No, your honor, but I'm here on behalf of Rice University, with instructions not to enter any appearance on its behalf as a party-litigant — neither as a plaintiff, a defendant, nor an intervenor. Rice's interest in these proceedings is indirect and contingent. But if it's possible, I'd like to have the opportunity to address the Court to a limited extent on matters that may particularly relate to Rice.

"I suppose," I finished up lamely, "I'm here in something somewhat akin to the status of an amicus curiae."

"Amicus curiae, hmmm?" said Judge Hughes, and he paused to ponder a moment. "Do any of the litigants have any objection to Mr. Dyer's request on behalf of Rice University?" he asked. None did.

"Well, Mr. Dyer," drawled Judge Hughes, "I never attended Rice, but I've always held it in high regard, and it's certainly one of our city's and our state's finest institutions of higher learning. I'll grant your request, and we'll leave your exact status here somewhat indefinite. You might manage to say something useful. But mostly, I find myself to be unexpectedly tickled pink just to learn that Rice University is indeed my particular friend, at least for the purposes of this case!"

"Oh, it is, Your Honor, it truly is!" I gushed relievedly — to loud guffaws from everyone else in the courtroom.

"Chums it is, then," said Judge Hughes with a grin. And I sat down, and made sure to keep my mouth firmly shut for at least the next hour of the proceedings.

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That anecdote is only mildly apropos given my main reason for posting here, which is essentially to reprint a comment I've left in response to a typically thoughtful series of posts over on the Volokh Conspiracy, including these two from Prof. Eugene Volokh. "Maybe I'm missing something," he writes, "but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases." (His co-blogger, Prof. Jonathan Adler, has also written about the ruling here and here, and their co-blogger Prof. Orin Kerr has written about it here.) Prof. Volokh further writes:

Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that — the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

I don't disagree with that, nor with his analysis of the ethical advisory opinion briefly cited in the DC Circuit's order. But here (slightly edited) is the comment I left on his post (amidst many other very perceptive and well-written comments):

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What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges.

If some entity had hired all these former judges to sign off as co-counsel of record on an amicus brief, in which they were clearly appearing as ordinary advocates rather than pseudo-principals, that would have been another thing altogether. Whatever additional dignity their past histories might lend to their arguments would be implicit at most.

Instead, their brief's statement of interest claims that

[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence 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.

Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit — and indeed, in that latter respect it appears to have backfired rather badly, eh?

I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; or let them sign on to such an organization's proposed amicus brief with a simple "Esq." title if they want to return to legal practice as counsel of record. But per Chief Justice Roberts' observations about judges as "honest umpires," we don't want to invite all ex-Major League Baseball umps onto the playing field to critique and second-guess the officials whose current job it is to call the balls and strikes. They can doff their chest protectors and their uniforms and shout from the stands along with the rest of us.