Designated Diffidence: District Court Judges on the Courts of Appeals
Brudney, James J., Law & Society Review
Since 1980, District Court Judges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or personal backgrounds to nearly the same degree as their appellate colleagues do when voting on labor law matters. The authors' findings and analyses regarding the behavior of designated district judges should be of interest to appellate courts considering the challenges of caseload management and to scholars studying processes and outcomes in the courts of appeal.
Over the past two decades, district court judges-designated pursuant to federal statute (28 U.S.C. 292  )-have participated in nearly one out of every five cases decided on the merits by the United States Courts of Appeals. The circuits invite such participation principally because there are not nearly enough active and senior appellate judges to meet the demands of a burgeoning appeals court docket (Baker 1994, McKenna 1993). Responding to this imperative, designated trial court visitors have helped decide more than 75,000 court of appeals cases since 1980.
Scholars in law and political science have on occasion questioned the role played by these judicial invitees. Some have contended that the pre-judicial backgrounds and trial-oriented experiences of district judges differ in material respects from those of "regular" appellate judges (Saphire & Solimine 1995; Slotnick 1983; Carrington 1969). Others have worried that district judge visitors may jeopardize the consistency-of-law values that inform the circuit courts' role in creating and clarifying legal precedent, or that participation by these same judges may compromise the collegiality and vitality of appellate court deliberations (Green & Atkins 1978; Saphire & Solimine 1995; Wasby 1981). It also has been suggested that district judge participation may undermine perceptions of legitimacy, as the appellate courts' presumptively neutral function of declaring the law shades into more prescriptive policymaking (Alexander 1965; Green & Atkins 1978; Note 1963).
Surprisingly, little empirical analysis exists regarding how these trial court visitors behave in their secondary appellate role. There is a dearth of information as to whether designated judges participate or vote distinctively from their appellate brethren on substantive law matters. It also is unclear whether district judges bring their individual values and experiences to bear on the judicial enterprise to the same extent as their panel colleagues, or whether they reflect those values and experiences in the same way as they do when serving on the trial bench.
This study provides insights into the role of district court judges in appellate decisionmaking. We examine district judge participations in more than 1,100 published and unpublished court of appeals cases reviewing decisions by one federal agency-the National Labor Relations Board (NLRB) -during a recent seven-year period. Our database encompasses all appellate cases decided between October 1986 and November 1993 that resolve unfair labor practice claims under the National Labor Relations Act (NLRA ).1 We have identified the 223 appellate judges and 105 district judges who participated on the court of appeals panels, and how they voted on more than 2,000 substantive labor law issues as to which appellate courts either affirmed or reversed the Board. …