This post continues our look at the Sixth Circuit’s practice of using visiting judges. We looked at the past two years (ending in July 2011) and found that 54 visiting judges took part in over nine hundred decisions available on Lexis. Consistent with what we reported earlier (here and here), visiting judges participate in just over a third of the total reported decisions for the circuit – which is among the highest rate in all circuits. Following up on other posts regarding case management practices, we were interested in how often visiting judges authored opinions, how often they dissented, and whether there were differences in reversal rates when visiting judges were on the panel.
We found that visiting judges authored less than a quarter of the opinions of the Sixth Circuit panels that they sat on. Given that lightening the caseload of the circuit is one of the chief purposes of visiting judges, this is somewhat surprising. But this also shows that Sixth Circuit judges are not as dependent on visiting judges as might be thought from the raw numbers of visiting judges. It may also lessen the impact visiting judges have on the law of the circuit, even though the overall number of visiting judges is very high.
Interestingly, decisions written by visiting judges were roughly 7% more likely to issue pure affirmances than opinions written by active circuit judges. Decisions authored by visiting judges were also significantly less likely to reverse or vacate only in part. While visiting judges at the Sixth Circuit are usually district court judges, it might also suggest that district court judges more less likely to reverse their colleagues. But this could be happenstance by virtue of the writing assignments they receive (from the circuit judge).
Finally, we found that visiting judges at the Sixth Circuit dissent at the rate for circuit judges as a whole outside of the Sixth Circuit (just over 1%), which tempers any criticism that visiting judges are overly deferential to the views of active circuit judges on the same panel. As we’ve previously noted, however, Sixth Circuit judge dissent far more often than the judges in most other circuits. So this means that visiting judges are much less likely to dissent than the other judges on the panel.
Thanks to Lauren Henderson, currently working as a law clerk at SSD, who collected and crunched the numbers for this post.