Academic journal article Justice System Journal

The Strategic Designation of Visiting Judges in the U.S. Courts of Appeals

Academic journal article Justice System Journal

The Strategic Designation of Visiting Judges in the U.S. Courts of Appeals

Article excerpt

Judges serving in the United States Courts of Appeals are theorized to pursue goals related to both the content of legal policy and the institutional maintenance of their court in the decision-making process. However, it is unclear how judges respond when these two goals are put into competition. To answer this question, I investigate the decision by circuit chief judges to designate district court judges for assignment in the courts of appeals. The analysis demonstrates that while circuit chiefs are more likely to use visitors when the working conditions of the courts of appeals are suboptimal, their selection from the pool of potential visitors is driven primarily by their ideological congruity with the potential visitor. This result suggests chief judges strategically manipulate the visiting judge process and that institutional goals structure the pursuit of policy preferences in the courts of appeals.

KEYWORDS: Courts of Appeals, judicial behavior, Court administrative, district courts

The office of Chief Justice of the United States affords its occupant a unique opportunity to shape the decisions of the Supreme Court. In terms of informal powers, Danelski (1961) demonstrates that Chief Justices can exercise different leadership styles to influence the collective outputs of the Court. Evidence of this informal power manifests itself in a variety of contexts, the most prominent of which being the breakdown of consensual norms regarding opinion writing (Epstein, Segal, and Spaeth 2001; Caldeira and Zorn 1998). In terms of formal powers, the Chief Justice plays a special role in agenda-setting through the creation of the discuss list (Caldeira and Wright 1990). He also has the potential to affect the creation of Court policy through his disproportionate ability to assign majority opinions to other court members (Lax and Cameron 2007; Maltzman and Wahlbeck 1996) or to keep particular opinions for himself (Epstein and Segal 2000; Slotnick 1978).

Less recognized is the ability of the Chief Justice to shape legal policy outside of the Supreme Court. In addition to his responsibilities to the Court, the Chief Justice of the United States is also charged with many administrative responsibilities for the entire federal judiciary. While most of these responsibilities are generally thought to be policy-neutral, recent media attention has demonstrated how one purportedly administrative responsibility may not be: the appointment of federal judges to the United States Foreign Intelligence Surveillance Court (FISA Court). The FISA Court was established in conjunction with the Foreign Intelligence Surveillance Act of 1978 (92 Stat. 1783). The court is a specialized court designed to review applications for warrants related to national security investigations. It is staffed by active federal judges, serving for staggered, nonrenewable terms of no more than seven years.1 The power to appoint these judges is given exclusively to the Chief Justice.

Recently, critics have raised concerns regarding Chief Justice Roberts's selection of judges to serve on the FISA Court.2 In July 2013, ten of eleven out of the court's judges-all appointed by Chief Justice Roberts-were nominated to the federal bench by Republican presidents. Over the course of his tenure as Chief Justice, 81 percent of his appointments to the FISA court were judges nominated by Republican presidents, including 50 percent of whom had previously served in the executive branch (Savage 2013). This has led critics to speculate that the Chief Justice may be using his administrative powers to shape judicial policy related to foreign intelligence surveillance by "packing" the FISA Court. Within six months of this increased scrutiny, Chief Justice Roberts appointed two new judges to the court, both of whom had been appointed to the bench by Democratic presidents.3 However, one of those two appointments, Richard Tallman, was a Republican appointed by President Clinton as part of a bipartisan compromise regarding judicial appointments, suggesting that the ideological balance of the court may not have shifted as substantially as the partisan affiliation of the appointees might suggest. …

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