It is a fine republican principle (note the small “r”) that when one departs from public office, one returns to the status of ordinary private citizen. Yes, we continue to apply various honorifics to persons who once held high rank—general, congressman, judge, president—when we address them. But there is something unseemly in a republic about making a privileged claim for attention on this basis. Civic equality is the lifeblood of republicanism.
Perhaps because we hold to the rule of law (“a government of laws and not of men”), we rather oddly elevate judges, as putative guardians of the law, highest of all—and call men and women “Judge” for the rest of their lives, no matter what else they do after their judicial service. So, in the Lincoln-Douglas debates of 1858, Abraham Lincoln consistently addressed his opponent as “Judge Douglas,” because of his prior service on the Illinois Supreme Court, and not as “Senator Douglas,” as he then was. (Of course Lincoln wanted Douglas’s seat in the Senate, and neglecting to address him as “Senator” may have been shrewd on his part. Calling him “Judge Douglas” may also have helped Lincoln score certain debater’s points on the subject of the Dred Scott case.)
Interestingly, though, the federal judiciary has fashioned for itself an ethical standard that forbids the use of the honorific “Judge” before the name of a former judge participating as counsel in a case in the federal courts. And so yesterday, by a 2-1 vote, a panel of the U.S. Court of Appeals for the D.C. Circuit denied the motion of seven former federal judges to file an amicus curiae brief in a pending case on the application of the recent Military Commissions Act—because they had presented themselves as Judge This and Judge That. (See here for a PDF of the ruling.)
Were Judges Sentelle and Randolph too persnickety in their denial of leave to file the amicus brief? After all, the rule’s origins seem to lie in the desire not to prejudice juries in trial courts by addressing one party’s counsel as “Judge.” Reached by the New York Times, legal ethics mavens Stephen Gillers and Ronald Rotunda disagree. For the sake of republican norms, I incline toward Rotunda’s view. The court gave a nice reminder that the views of former judges carry no extra weight because of that personal history, and claim no privileged attention.
But the funny part about this whole business is former judge Abner Mikva (former congressman and former White House chief of staff Mikva, that is, but very stuck on being called “Judge Mikva,” apparently), who tells the Times he thinks that Sentelle and Randolph have it in for him personally. Something to do with Mikva’s public opposition to judges attending private seminars. Or whatever. But it just has to be all about Abner Mikva, right? What an ego. What a laugh.