On more than one occasion, we have discussed the Sixth Circuits use of visiting judges. Specifically, we have noted the Sixth Circuit’s heavy reliance on visiting judges. While the Sixth Circuit’s use has decreased, the percentage of cases heard by visiting judges continues to exceed almost all other circuit courts.
In the review of case participation in U.S. Courts of Appeals for the twelve months ending June 30, 2015, the Sixth Circuit alone accounts for nearly 30% of all cases in which a visiting judge was present. While the number of Sixth Circuit cases in which a visiting judge has participated has dropped to just over 11%, down from 14.4% this time in 2013, the only court that uses visiting judges more frequently is the First Circuit, which had a visiting judge participate in over 17% of its cases. However, the percentage does not tell the entire story, because visiting judges in the First Circuit only heard 460 cases last year, compared to the 981 heard by Sixth Circuit visiting judges. Together, the First, Sixth, and Ninth Circuits accounted for over 70% of all cases involving visiting judges.
As we have remarked in previous posts, the assistance of visiting judges has broader impact than simply helping a short-staffed court manage a significant caseload. The effects of visiting judges can have a “cross-fertilization” effect on circuits, causing a significant exchange of information between the various circuit courts. Additionally, it has been suggested that the visiting judge program brings intangible benefits including increased collegiality among the judges (particularly between district and circuit judges). However, the program has been criticized for the over-use of district court judges as visiting judges, a practice that some suggest can mitigate the positive impact of the program.
Regardless of the debate about the use of visiting judges, they have long been a fixture at the Sixth Circuit. Around 2000, the Sixth Circuit had only eight active judges (out of 16 allotted) because the Senate was not confirming anyone. The Sixth Circuit thus had to rely on visiting judges to help manage the docket. Since that time, while the number of active judges have increased and the number of visiting judges have decreased, visiting judges continue to play an important role at the Circuit. This suggests that Sixth Circuit judges view visiting judges as a positive influence on the Court and its jurisprudence.