Borrowed Judges: Visitors in the U.S. Courts of Appeals - Articles

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Posted by: Andrée Blumstein on Aug 1, 2018

Journal Issue Date: Aug 2018

Journal Name: August 2018 - Vol. 54, No. 8

By Stephen L. Wasby | Quid Pro Books | $34.99 | 299 pages | 2018

Reviewed by Andrée Sophia Blumstein

Many — but not all — of the federal circuit courts of appeals use visiting judges sitting by designation from their respective district courts or from sister circuit courts to help manage their caseloads. Borrowed Judges examines and astutely explains the impact this case-management system has on the work product of the circuit courts and on the development of the law. It offers a wealth of useful information for the bench, the bar, judicial administrators, and, indeed, for anyone interested in how and why cases get decided the way they do.

Because much of the study lasers in on the influence of visiting judges in the Sixth Circuit Court of Appeals, Borrowed Judges is of particular relevance — and should hold particular fascination — for Tennessee attorneys and jurists. The author/investigator, political science Professor Wasby, has singled out for special attention those circuit courts that are frequent flyers with the visiting-judges program. And it turns out that, with the possible exception of the Ninth Circuit Court of Appeals, the Sixth Circuit borrows judges at a much higher rate than other circuit courts.

The over-arching aim of the study is to shed light on who makes the law of the circuit and how — i.e., whether and to what extent the various categories of visiting judges influence the decisions or the decision-making process of the circuit court that hosts them. To accomplish the goal, Wasby assesses a wealth of information from various angles. Of necessity, the book provides lots of data and statistical analysis and includes an appendix with informative tables, from which one can compare, for example, visitor participation — broken out by circuit and type of visiting judge — in published circuit court opinions with visitor participation in unpublished decisions.

On a more nitty-gritty level, you can check out — by name — which judges form today’s cadre of visitors and which visiting judges have cast the determinative vote on a circuit panel. Or you can learn what the chances are that a visiting district judge will vote to affirm a decision from her district or State. The penultimate chapter is dedicated to scrutinizing the extent to which participation of a visiting judge on a circuit court panel might be a catalyst for — or a predictor of — en banc circuit court rehearing or U.S. Supreme Court review.

The statistics are tantalizingly spiced with stories and tidbits about the experiences and attitudes of individual judges, mostly gleaned from Wasby’s own interviews with them. The interviews have produced candid evaluations of the efficacy of the system from the perspective of both the borrowed judges and the borrowers. Circuit court judges variously welcome visiting judges because they offer competent and much-needed help, disdain visiting judges as disruptors of the culture of the circuit, or tolerate visiting district court judges so that the visitors can be “socialized” to understand what their appellate colleagues expect of them. And the interviews confirm that, while some judges visit to experience variety, to hone their skills and expand their expertise, and to be of help to their colleagues, other judges angle for invitations mainly for the attendant opportunity to sight-see in desirable locations or to pop in on friends and family.

Although rich in data and details, Borrowed Judges does not ignore the bigger picture. Thought-provoking attention is paid to normative concerns about the use of visiting judges. Much of our law is made in the circuit courts of appeals; the influence that visiting judges have on the development of that law is not negligible. Should judges other than those appointed to the circuit be allowed to participate in the making of that law, and, if so, to what extent? For example, should their participation be limited to non-precedential opinions? What is the propriety of permitting a district court judge to decide an appeal from his own district? What would be the cost to the judicial system if circuit courts could not depend on borrowed help?

ANDRÉE S. BLUMSTEIN is the solicitor general for the state of Tennessee and chair of the Tennessee Bar Journal Editorial Board.