Have you noticed that everyone now seems to need a title?  It’s no longer enough to be just “Mr.” or “Mrs.” or “Miss.”  Title inflation is as rampant as grade inflation, and produces equally silly consequences. 

For example, while watching some gameshow on television the other day, I noted that one of the players was described as a “senior bookseller.”  In the old days, we might just have said that he worked in a store.  Similarly, at a party over Christmas, I was introduced to a gentleman who told me that he was a “senior accounts risk analyst.”  No further explanation was offered.  When I enquired as to where he performed this apparently exalted function, I was informed that he worked at a bank.  I then realised that in olden times we might have just called him a banker.

(By the way, have you ever noticed that everyone with a title is a “senior something”?   How come there are no “junior booksellers,” “junior associates” or “junior vice-presidents”?  But, I digress.)

I was heartened, therefore, to hear that a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit recently struck a blow for simplicity.  It issued an order rejecting a brief filed by seven former federal judges on behalf of several Guantanamo detainees in their suit against the U.S. government.

The judges in question, among whom were Abner Mikva, Patricia Wald, and Shirley Hufstedler, attemped to file an “amicus,” or “friend of the court,” brief in which they sought to give their views on the use of Guantanamo for open-ended detention.  Such briefs are routinely admitted by courts in all sorts of cases — political, criminal and commercial.  They are filed by law professors, trade associations, scientists, and activist groups of all political stripes.  In fact, it’s rare that courts in high profile cases refuse the filing of such briefs.

In this case, however, the retired judges offended a majority of the circuit court by referring to themselves as “judge” in their brief.  In so doing, they ran afoul of a little-used rule in advsory opinion issued by the Committee on Codes of Conduct of the U.S. Judicial Conference that dictates that former judges should not use that title in litigation before the courts.

That opinion states that “Judges [in this case the Circuit Court judges] should ensure that the title ‘judge’ is not used in the courtroom or in papers in the litigation before them to designate a former federal judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.”  With this rule in hand, Judges David Sentelle and Ray Randolph ordered that the brief be returned to the former judges. 

Judge Judith Rogers dissented from that ruling, and opined that “[b]riefs by former federal judges and other such amici can be of assistance to the courts.”  She further hinted that denying leave to file the brief raised the spectre of partiality, since the judges whose names were all it were all reliable liberals.

Rogers misses the point, however.  No one doubts that the views of former federal judges on the functioning of the judicial system are of great interest.  The only question is whether those views are entitled to any greater weight than those of former lawyers, former law professors, or even former litigants.  Instead, as one law professor noted, the former judges were clearly trying to “leverage their titles” in an attempt to gain an advantage in the litigation.

Indeed, the advisory opinion in question notes that levelling the playing field is essential to avoiding the appearance of partiality so necessary to judicial proceedings.  In explaining the rationale behind the rule, the advisory committee states 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.”

As might be expected, the order has opened the doors to complaints of partisanship from both sides.  Stephen Gillers, a law professor from New York University, opined that the ruling was “more than petty.”  It was, he said, “unnecessary and insulting,” and he noted that the judges could simply refile the brief without using their titles. 

That’s true.  And, maybe that’s what they ought to have done in the first place.  One would hope that their views would stand on their own without the need to use titles, like “judge” or “senior bookseller” to impress the ignorant.

 

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