Though I don't join Eugene Volokh in jumping off the deep end of perceived unconstitutionality*, I have to agree with him and Jonathan Adler that Judge Reggie Walton, who has presided over the Libby trial, is unjustifiably sarcastic toward the dozen law professors who asked to file a brief on the issue of whether Patrick Fitzgerald's appointment as special counsel was constitutional. Various liberal bloggers are delighted by the footnote, but some seem to be under the misapprehension that all of the amici are friendly toward the Bush Administration.
In actuality, Bork, Dinh, Kmiec, Lawson and Maltz are originalist conservatives; Nagel is an anti-lawyer populist conservative**; Parker is a flag-obsessed populist conservative. But Barnett is a libertarian who has argued against the Bush Administration (Raich); Vikram Amar and Merrill clerked for Justice Blackmun; Pushaw favors a broad reading of the Commerce Clause; and Dershowitz is... well.
But whatever their political leanings, all of the above are constitutional scholars, several of whom also specialize in criminal procedure. The reason the brief was filed at this juncture (rather than earlier, on a motion to dismiss the charges, or later, on appeal) is that Judge Walton is considering whether to grant Libby bail while Libby appeals his conviction to the DC Circuit. One of the conditions for such a release is "(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." In their brief, "Amici take no position on any other issue raised in this case or on whether this Court should grant or deny bail pending appeal. The sole issue they address is whether the Appointments Clause issue is a close one."
Libby's own attorneys already filed a motion to dismiss on the Appointments Clause issue, back on February 23, 2006. The lawprofs are not going so far out on a limb as to suggest that Walton definitely decided wrongly in ruling against Libby on that issue; they're only uniting to say that it's a sufficiently debatable point to constitute a substantial issue of law.
In comments at Volokh and at N&B, co-blogger Armen points out that members of the legal profession have a duty to serve the indigent and not decline appointments by a court. "I could be wrong, it could just be important legal issues that require the quick thinking talents of 12 law profs only arise in cases where the defendant has the political clout and financial resources of Solomon... Snarky footnote is the perfect response in this case, especially coming from a judge with 16 years of experience dealing with criminal defendants in D.C. I'm willing to bet this is the first time anyone's filed an amicus brief in his court room. You think this is the most pressing constitutional issue he's had to decide? You think this is the most pressing defendant for whom a 'close' constitutional question mattered? Judge Walton is a bit cynical. I'm right there with him."
I disagree with Armen. The average criminal defendant doesn't have an issue of constitutional law that might overturn or at least modify existing Supreme Court precedent arise in her case.
INCIDENTALLY: The man who appointed Patrick J. Fitzgerald as special prosecutor, after Ashcroft was forced by Democratic demands to recuse himself from the case, has now become a recognizable name due to his recent testimony about politicized attorney general firings. Back in 2003, Deputy Attorney General James Comey described Fitzgerald thus: "He is an absolutely apolitical career prosecutor." Fitzgerald had received the Attorney General's Award for Distinguished Service in 2002, but Fitzgerald "was ranked among prosecutors who had 'not distinguished themselves' on a Justice Department chart sent to the White House in March 2005."
* Prof. Volokh concludes,
Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel -- such a requirement would, I think, be a violation of the right to be free from speech compulsions.This is just silly. First, Prof. Volokh gives no basis for his claim that judges "rarely" use the power to require members of their bars to represent a litigant who lacks the resources to pursue his case adequately. Many people pursue claims pro se, and courts want to see the argument presented as ably as possible, so they appoint talented (and more to the point, wealthy) lawyers to do the job, and thank them for taking it (see n.1). Whether the appointed lawyer believes her arguments should prevail is irrelevant.
And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense -- rather than just suggesting he would offer a nonbinding invitation -- then that strikes me as threatening to do something the court is not allowed to do.
Second, on the specific amici question, Steve Lubet notes in Volokh comments, "Courts certainly do appoint amici to provide detached input on legal issues. I don't see a problem with that, so long as the amicus's ultimate opinion is not dicated by the court." In response to another commenter's claim that Judge Walton's sarcasm is merely a way to preemptively ignore the amici's arguments, Prof. Lubet adds, "If he wanted to dismiss their views he could have rejected the brief, especially since they didn't fulfill the requirement of setting out an interest distinct from the defendant's."
Personally, I don't think the lawprofs' brief is any worse about setting out a distinct interest than, say, the Urban Morgan Institute for Human Rights was in Hamdan. My gripe is more about the brief's sloppiness. For example, paragraph 2 of the motion section says, "Mr. Libby plans to file a motion requesting that he be released on bail pending appeal pursuant to 18 U.S.C. § 3142." Wrong section, fellas: 3142 covers bail pending trial; 3143 covers bail pending sentencing and appeal.
** Speaking of snark, in reviewing Max Miller's The High Priests of American Politics: The Role of Lawyers in American Political Institutions, Nagel says,
One of Miller's most interesting--and depressing--findings is that lawyers tend to be unrealistic and uncritical in their attitudes towards judges. Lawyers, for example, are more likely than other legislators to believe that judicial interpretations are not political. They are less likely to respond to judicial excesses by trying to limit judges' power. And the most prestigious lawyer-legislators, such as those who sit on the Senate Judiciary Committee, are actually so entranced by the model of "The Judge" that they talk and act as if they themselves were jurists.
Our system was built on the idea that power cannot be trusted -- that ambition must be used to check ambition. To an astonishing extent, this principle has not worked with federal judges, who go merrily on their way enjoying ever more prestige even as they abuse their role. Miller helps us understand why. The legislative branch that is supposed to help check judicial excesses has been infiltrated by the same legalistic vocabulary and value system that fuels judges' behavior. Even more worrisome is Miller's suggestion that this lawyers' ideology now "resides in the minds of Americans": To the extent that we have all become lawyers, there is no one to keep judges in check.