This is the second in a series of posts touching on overlooked or misunderstood parts of the Sixth Circuit. We already briefly looked at senior judges, and now we turn to the role of visiting judges.
Any Article III federal judge can be assigned to temporarily sit on another federal court under 28 U.S.C. § 292. Judges assigned to a court of appeals typically sit for a singe two-day session of cases. Inter-circuit assignments (also called “designations”) are made by the chief judge of a circuit, and assignments between circuits are approved by the Judicial Conference Committee on Intercircuit Assignments, though the statutory authority ultimately rests with the Chief Justice of the Supreme Court. About 370 judges visited other circuits to hear appellate cases last year, handling about 5% of all cases decided on the merits. Senior judges, who have the most flexibility with their workloads, take the great majority of visiting assignments.
The Sixth Circuit has historically had a very high dependence on visiting judges, often the highest of all the circuits. In the early 1980’s visiting judges shouldered around 15% of the Sixth Circuit’s caseload. That number rose to around 20% during the Senate’s refusal to confirm Sixth Circuit judges during 2001-2007. At that time, a majority of the circuit’s panels contained one visiting judge. The number of visiting judges has recently declined to the current level of participation in roughly 10% of the circuit’s decisions on the merits. When combined with the Sixth Circuit’s strong reliance on senior judges, most panels will have a senior judge or a visiting judge and some will have both. (This assistance is essential. While the other circuits averaged a 9.6% decline in the number of pending cases last year, the number of cases pending in the Sixth Circuit rose by 11.2%.)
Aside from providing assistance to overloaded circuits, visiting judges are praised as a source of cross-fertilization and collegiality among the circuits. Visits give district court judges the opportunity to gain perspective on the appellate courts. Less often, appellate judges will try cases on the bench. The program is doubtless an incentive for some senior judges to accept higher appellate caseloads that they would otherwise accept. It is also one of the last remnants of the traditional practice of judges traveling extensively through their jurisdiction, including Supreme Court justices “riding circuit.” (In fact, Justice O’Connor recently sat on a Sixth Circuit panel after her retirement from the Supreme Court).
Reliance on visiting judges is, however, frequently criticized as undermining uniformity and clarity in circuit law – though possibly fostering a more uniform federal law. These concerns have led the D.C. Circuit to its policy of accepting very few, if any, visiting judges. A more worrisome criticism is that visiting judges produce, on average, lower-quality opinions. Another study found that visiting district court judges were “markedly less assertive than their appellate colleagues” and less likely to dissent. A panel with only one active resident judge might defer to that judge, reducing the benefits of three-judge panels. (One district judge responded to this criticism by remarking that very few of his colleagues “fit into the shrinking violet category.”).
These concerns are difficult to measure and largely speculative, while the benefits are far more concrete: visiting judges reduce the Sixth Circuit’s caseload without affecting its budget or requiring Congress to create new judgeships. The practice has been a necessary and integral part of the intermediate federal appellate courts for many years.