Continuing our exploration of case management practices in the Sixth Circuit, this post compares the Sixth Circuit’s use of visiting judges with that of other circuits and weighs the potential for impact of the visits on the circuit’s procedures. We have previously explained how visiting judges handle a large portion of the Sixth Circuit’s caseload and how the use of visiting judges may affect the circuit’s decisions. Though the Sixth Circuit’s heavy reliance on visiting judges is unusual, it is unlikely to have a large impact on the circuit’s other case management practices.
Visiting judges participated in 4,398 decisions for all circuits in 2010 – about 7.5% of the total number of appeals terminated. But the use of visiting judges is concentrated in just a few circuits. The Second, Sixth, and Ninth circuits accounted for 70% of the panels with visiting judges. Adding the Third and Tenth Circuits pushes that number to 85%. The Second (at 19%) and Sixth (at 17%) circuits have by far the largest percentage of total terminations involving visiting judges, with the Ninth Circuit a distant third (at 11%). Most other circuits are in the low single digits, with the Fifth Circuit using visiting judges for only 1% of its total caseload. The D.C. Circuit does not use visiting judges at all.
Marin Levy of Duke Law School opines that the low rate of visiting judges contributes to the difficulty that some judges have in comparing procedures across circuits, and writes that the program is “an ineffective means of significant information exchange.” As to cross-fertilization between case management procedures across circuits, even that conclusion may be optimistic given that a full 80% of the judges visiting circuit courts in 2010 were district court judges. And 75% of the appellate judges that visited other circuits were senior judges. Judges from the Third Circuit accounted for almost all of the visits by active judges to other circuits.
Given that active judges are responsible for setting circuit policy and case management, the impact of visiting district court or senior circuit judges on those policies is likely minimal or non-existent. None of the active Sixth Circuit judges visited another circuit in 2010, and only one active judge from another circuit visited the circuit during the year. The visiting judges program, however, allows the circuit to draw on outside resources to reduce its heavy docket load, and in that respect, it carries a significiant impact on the Sixth Circuit's ability to manage its docket. Historically understaffed for years, the Sixth Circuit grew to depend on assistance from visiting judges. Without this assistance, cases would have languished for lack of judges.
The visiting judge program may also yield intangible benefits. It can promote collegiality between circuit and district court judges, and current district court judges may have a unique perspective to bring to the consideration of certain appeals.