Commission on Structural Alternatives

for the

Federal Courts of Appeals

statement submitted by

Judith Resnik
Arthur Liman Professor of Law, Yale Law School

for its public hearing,
New York City
April 24, 1998

My thanks to Yale Law student Eric Biber for his talented and thoughtful assistance.

I. Introduction

Thank you for the opportunity to comment on the work of the Commission. I have had the good fortune to live on both coasts of the United States and thereby to gain a sense of affiliation with two circuits, the Second and the Ninth Circuit. In addition, I have spoken (as an academic guest) at judicial conferences in the First, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits, and I have appeared (as an appellate lawyer) in the First, Second, Third, and Ninth Circuits. I have thus had the pleasure of seeing some of the diversity in practices as well as the continuities among the circuits within the federal system.

This spring, in teaching Federal Courts and debating with students interpretations of Article III, of the Tenth and Eleventh Amendments, of abstention, preemption, and preclusion, I am struck by two repetitive themes of United States constitutional culture: a deep sense of a shared nation and a persistent commitment to diversity in structure and to a high tolerance for divergent rules of practice and substantive rules of conduct. We celebrate both the connections and the variations under the terms "federalism" and "separations of powers." My comments thus reflect a system of courts and a government that is at once unitary and filled with variety. I assume that such unity and variation will continue to be bedrock premises of the work of this Commission as it reconsiders the shape and methods of appellate adjudication in the federal system.⁽¹⁾

One other point by way of introduction is in order. The size of the current federal circuits varies, reflecting a mixture of historical accident and perceptions of politically possible options. The current supposed "outlier" is the Ninth Circuit's structure, which has drawn a good deal of attention, resulting in the creation of this very Commission. For some, the assumption is that the small insular circuit is and should be the norm, and the Ninth should be reformatted to conform to that model. As I will detail below, such insularity does not capture much of the current federal appellate process. Hence, my comments begin by sketching the complexity of describing what is -- the current state of affairs within the federal courts -- which is a predicate to determining what the federal courts could and ought to be.

II. The Current Federal Judicial System: The Question of Description

1. A Four-Tiered, Interactive Circuit System with Almost 1600 Judges

In many contemporary discussions, the federal courts are assumed to be comprised of three tiers of courts and numbering fewer than 850 judges.⁽²⁾ That description should be revised to take into account the enormous contribution of two sets of judicial officers (magistrate and bankruptcy judges) and to acknowledge that the appellate courts are no longer staffed solely by active appellate judges within a given circuit.

Simply put, the federal system is now comprised of some 1600 judges working at four levels of adjudication.⁽³⁾ Less simple is the task of describing who is at what tier.

Let me start at the trial level, which could either be conceived as comprised of 1405 judges or as a two-tier system. The variations in description depend on how to capture the work of the 432 full-time magistrate judges and the 326 bankruptcy judges, some of whom function almost as full-fledged members of the district court bench and others of whom serve as delegatees of that bench. In some district courts, magistrate judges' names are placed "on the wheel," resulting in the direct assignments of newly-filed cases; in other districts, magistrate judges receive cases through district judges. Bankruptcy judges have great autonomy, with only a tiny fraction of their work subjected to review.⁽⁴⁾ These 1400 judges who do trial level work within the federal courts of the United States also receive assistance from a host of adjuncts, including court-annexed arbitrators, mediators, and early neutral evaluators.

The district courts themselves sit as appellate courts for some of the work of magistrate and bankruptcy judges as well as for some of the decisions of administrative law judges, who are located in federal agencies and who also function as first-tier federal adjudicators. Further, in about half of the federal circuits, bankruptcy judges sit as members of a bankruptcy appellate panel ("BAP") to review the work of other bankruptcy judges.

Turning to the circuit courts, 179 appellate judges are authorized. But that number is not the number of judges who staff the appellate courts. My point here is not about vacancies nor about administrative staff, but rather about the additional judicial workforce of the appellate courts -- senior appellate judges and visiting judges (from other circuits and the district courts) who are "designated" to sit on the federal appellate courts.⁽⁵⁾ In 1997, the 179 active appellate judges received the assistance of 87 senior appellate judges, 190 active district judges, and 133 senior district judges.⁽⁶⁾ Thus, the appellate courts should be understand as consisting of at least 266 appellate judges, assisted on occasion by another 323 district judges.

How many of which kinds of judges do what work on the appellate courts? As I understand it, this Commission's staff will soon be able to answer that question. Some information is available, but its import varies depending on which measure of appellate work is used. One description relies on the numbers of dispositions across the federal system, while others turn to the role of designated judges in oral argument or in published opinions. Also relevant are distinctions between the contributions of district -- as contrasted to appellate -- visitors and between senior resident judges, as contrasted with visitors from other circuits or the district courts. Finally, adjustments may be needed to account for en banc proceedings, in which visiting judges do not participate.

In 1997, 51,194 appellate terminations occurred, ranging from decisions without oral arguments or published decisions to opinions decided en banc and including procedural and well as merit terminations.⁽⁷⁾ Appellate courts terminated 25,840 cases on the merits.⁽⁸⁾ Visiting judges (including appellate judges from outside a given circuit and district judges either from within or without a circuit) contributed 6.2 percent to the workload needed to resolve those terminations.⁽⁹⁾

A different sense of the role of visiting judges derives from considering their work in "terminations after oral argument." Just under one third (32.7 percent) of these decisions included participation from visiting judges.⁽¹⁰⁾ Yet another baseline comes from decisions resulting in published opinions. In 1997, some 6055 decisions were published; in more than one quarter (27.4 percent), a visiting judge participated. Of those published opinions, it appears that district judges contributed significantly; about a fifth of the published opinions result from panels on which at least one district judge (from within or outside a circuit) sat.⁽¹¹⁾

A distinct issue is the contribution of senior judges within a circuit ("senior resident judges"). They provide 15.4 percent of total case participations in cases terminated on the merits.⁽¹²⁾ Not yet clear is how often they sat at oral arguments or how many published opinions they either wrote, joined, or from which they dissented.

I have thus far provided an aggregate picture; The use of visitors, however, is not uniform across the circuits. The data need to be understood in the aggregate as well as disaggregated. One circuit (the District of Columbia) is distinguished by the absence of visitors; the other circuits vary, with some relying frequently on visitors.⁽¹³⁾

I also have provided an incomplete picture. We do not yet have a measure of the total contribution of both resident senior judges and visiting judges. Nor do we know much about the composition of the visiting and designated federal judiciary: what judges spend what proportion of their time in which circuits? Also not yet available is the number of panels hearing oral arguments in which two out of the three judges is visiting or senior.⁽¹⁴⁾ Yet another question unanswered is the number of opinions -- majority, concurrences, or dissents -- authored by visitors and senior judges. Further, while some variation occurs from year to year, insufficient retrospective data makes comments on trends difficult. Finally, my discussion has focused exclusively on the role of the work of judges; many commentators have detailed the significant role that staff attorneys play in the federal appellate process.

Despite the preliminary and insufficient data, however, one point becomes clear. The 179 active appellate judges do not suffice to staff the federal appellate courts.

2. Increasingly Permeable Boundaries Between the Circuits

A few years ago, I argued an appeal in an East Coast circuit. The panel before whom I appeared consisted of one judge from that circuit and two from other circuits. Turning from that anecdote to the data, of dispositions made after oral argument, more than fifteen percent of the panels had at least one visiting judge from outside the circuit.⁽¹⁵⁾ Thus, another aspect of the current federal appellate system becomes clear. The conception of a circuit's law as made by a specific set of individuals, resident in a particular territory, no longer describes the process for deciding cases in many of the circuits.

3. The End of Appeal as of Right

In 1984, Chief Justice Rehnquist suggested that the federal courts consider ending appeal as of right and move to a discretionary appellate system.⁽¹⁶⁾ While the Long Range Plan of the United States Courts has not adopted such an approach,⁽¹⁷⁾ several judges and commentators have detailed the transformation of the appellate process.⁽¹⁸⁾ In many -- but not all -- circuits, oral argument is no longer had, as of right. Nationally, about one fifth of the federal appeals have oral arguments.⁽¹⁹⁾

In all circuits, cases are screened. Some cases receive a briefer appellate process than do others. In short, the breadth of appellate process has become discretionary, ranging from a brief screening heavily dependent on staff work to a full-blown appeal. Looking back in time, one sees that what is called "appeal" has either changed or that appeal is no longer available, as of right, in all kinds of cases.⁽²⁰⁾

III. The Import of a Revised Description: Appreciation of Invention and Altered Agendas

My commentary on the use of magistrate and bankruptcy judges at the trial level and of senior judges and of visiting judges at the appellate level should not be read as a criticism of those practices. Rather, I admire a judiciary that has labored under severe workload pressures and in light of a reluctance to expand but has nevertheless found means to augment its workforce. The judiciary has, in essence, manufactured additional judicial resources without obtaining new life-tenured positions.

But the invention in turn should change the terms of the debate. The current statements of the size of a given circuit in terms of the number of active judges does not in general describe the number of judges needed by that circuit to decide its cases.

Moreover, even with the additions of extra judicial person power, the process of appellate judging has been reformatted to limit full appellate procedure to a small fraction of cases pending on appeal. The question, then, is what is to be done now.

1. Reject Approaches that Argue for Arbitrary Limits on the Size of the Federal Appellate Judiciary and Attempt to Shift the Focus Away from a Preoccupation with Numbers.

A debate over the past several years has been about the proper size of the federal judiciary. The number 1,000 is offered as a benchmark of what is a "big" or "small" federal judiciary.⁽²¹⁾ But that number has in fact been exceeded by the actual numbers of judges working -- very hard -- to respond to the requests for adjudication within the federal system. The debate about presumptive caps and quotas, hinged to the number of 1,000 is, I believe, of little use when contemplating the federal adjudicatory needs and tasks and is -- in and of itself -- neither a wise use of judicial resources nor a helpful lens through which to contemplate contemporary problems. I hope this Commission rejects that approach.

2. Reframe the Focus on the Comparison between "Large" and "Small" Circuits and Evaluate the Utility of a Mobile Appellate Judicial Workforce.

When the model of a "good" circuit is a group of seven judges sitting around a table, the picture of the current appellate judiciary -- with its mobile and expandable workforce -- appears troubling. But as others have testified, that model is long gone. Whatever its virtues, such a model lacks the most important virtue: the capacity to deliver appellate review to the United States citizenry at the end of this century.

The issue is not how to change the federal appellate system, but rather what to make of the fact that the federal appellate system has changed. For me, the question implicit in the recitation of data on the visiting and district court judges who staff the federal appellate courts is whether appellate courts should be enlarged to end the reliance on district judges and visiting judges or whether the approach embedded in the invention of the visiting system should be used as the basis for further elaborations.

Take the downside of visitors first. In the debate about the Ninth Circuit, the charge of "unpredictability" is hurled, based upon the numbers of possible combinations of 28 active judges into three-person panels. But if changing compositions of appellate panels is the issue, then senior, visiting, and designated judges need to be included in the calculation. In short, the question of variation in composition of panels is not limited to the Ninth Circuit; alteration of that circuit's lines would at best be minimally responsive to the problem. The focus, instead, should be on the current system of visiting and designated judges, with an eye either to its abandonment or to limitations. The question of the role of senior judges also comes into play, for they too increase the variation in composition of a court, albeit from a more insular perspective.

But an alternative approach is possible. Instead of assuming that visiting judges are a "necessary evil," I suggest exploration of the potential utility of two aspects of the system, that pertaining to district judges and that pertaining to inter-circuit appellate designations.

One might, for example, celebrate the fact that district judges sit upon occasion on the appellate courts; consideration is in order of a system that encourages the crossing of the boundaries between trial and appellate courts. In Australia, for example, trial level judges are assigned to staff appellate courts on a routine basis, rotating through an appellate court assignment for three month intervals. Is the current ad hoc usage in the United States system a wise accommodation or should a more formal rotation system be desirable? Should all district judges be presumptively included? If so, at what point in their tenure? Obviously relevant is the current burden placed upon a district judge to staff both the appellate and trial courts. Exploration of the effect of such work on district judges needs to be undertaken.

Turning to inter-circuit designations, one could understand the system as enabling inter-circuit conversation by virtue of the presence of "outside" judges. While the insularity of circuit law may be diminished, it is possible that inter-circuit designations could become a vehicle for inter-circuit uniformity, seen by some commentators as attractively buffering the workload problems of the Supreme Court.

Assume, for the moment, that visiting judges could be seen as enabling discussion -- in appropriate cases -- about inter-circuit conflict. The present structure does not make good use of that opportunity. Under the current system, appellate advocates must assume that designated judges do not bring their law with them. Further, advance notice is generally insufficient for appellate advocates to focus on the law of the circuits from which the visitors come. Indeed, under the current use of designated judges, the assumption made by many appellate advocates is either of a "weaker" panel, in the sense of that appellate panel's willingness to develop a legal principle or of a "dominant" judge, in the sense that the sometimes single judge from within a circuit has a pivotal role in the decision.

In short, a question for the Commission is whether and how to shape the system of visiting judges. Should limits of one such judge per panel be encouraged? Should designation of visiting judges be encouraged in cases in which other circuit law may be of particular import? Should district judges have a specified place on appellate courts? I hope these questions will be a part of your agenda.

4. Build on the De-facto Four Tier System to Create More Appellate Courts

The district courts now sit to review work of magistrate judges. Bankruptcy judges sit to review work of other bankruptcy judges. In short, not all "appeals" are heard at the circuit level.

One question -- emerging out of the experience of the BAP -- is whether such courts have the capacity to provide a more fulsome appellate process than do many of the circuits or whether these appellate courts are relying on the more administrative model of appellate review now common in the federal courts.

Another question is whether to build on the system to create more appellate opportunities. This Commission could either consider the formalization of another tier of appellate review or could explore the desirability of this mixed system, in which judges sit at both levels. While specialization (here, in terms of appellate as contrasted with district court work) may be useful, so is the understanding gained by having the perspective of both trial and appellate levels.

5. Reject (at least for now) an Assumption of Uniformity Across Circuits

In the effort to grapple with significant workload pressures, different circuits have relied on a variety of methods. For example, some circuits use visitors often but offer more oral arguments than others; some use BAPs and others do not. At present, no particular packet of responses can be argued as optimal. The Commission has identified areas in which we lack information sufficient to evaluate the effects of reforms. Thus, I hope you will rely on the insights of federalism and the celebration of variation within the federal structure to tolerate a fair amount of diversity -- at least until sufficient judgeships exist to meet the demand of appellate judging. The superficial "fix" of changing the territorial boundaries of any particular circuit is not appropriate to the issues set forth by your mandate.

6. Object to Congressional Management of the Federal Judiciary as if It Were an Agency and Promote Efforts to Enhance the Capacity of Life-Tenured Judges to Adjudicate

The federal courts are a branch of the United States government, but of late, appear to be treated as an agency within the federal system. Members of Congress have raised objections to an array of practices of the federal courts, and members of the judiciary have worried about the effects of such oversight on the federal judicial budget.

The administrative expansion of the federal judiciary puts it at risk of being so dependant on its staff that the judiciary needs to placate. The impulse to placate in turn undermines the constitutional insulation afforded by Article III. It may be that Article III protections are insufficient -- in this century -- to the task of protecting the independence of the judiciary, but those are the protections currently available. The political context of this Commission's work makes all the more important the crafting of proposals that protect judicial independence. Each suggestion that comes before this Commission should be evaluated with that test in mind.

Further, many judges and commentators have described the current role of a federal appellate judge as more like that of an administrator than a judge. The more federal judges become administrators, the weaker is the argument for insulation of their decisionmaking authority. The justifications of life tenure rest on the importance and difficulty of judging. To the extent federal judges -- trial and appellate -- continue to turn their role into that of case processor, mediator, facilitator, manager or administrator, they undermine the premises for the unique place that they hold within United States constitutional government. I urge that this Commission use its report to elaborate on the difficult but critical role of federal judges and to make proposals to enhance the ability of such judges to serve the citizenry by enhancing access to the courts and requiring judges to undertake the difficult task of adjudication.

Thank you.

2. Counting 179 authorized circuit judges, 647 district judges, and 9 Supreme Court justices, 835 is the total.

3. That number includes the 9 Supreme Court justices, as well as all of the authorized circuit judges (179), district judges (647), full-time bankruptcy (326), and full-time magistrate judges (432). See the 1997 Annual Report of the Administrative Office of the U.S. Courts at 33-35.

4. As of 1997, for example, with 1,367,364 bankruptcy filings, 1,158 bankruptcy appeals were commenced. See 1997 Administrative Office Report, Tables B-1 and F-2. Extrapolated, less than one tenth of one percent of bankruptcy decisionmaking received appellate court (as contrasted with district court) review.

5. See 28 U.S.C. §291(a) (authorizing circuit judges to sit on other circuits); § 292(a) (authorizing district courts to sit on the court of appeals. One of the few commentaries on some of these practices can be found in Richard B. Saphire & Michael E. Solimine, Diluting Justice on Appeals?: An Examination of the Use of District Court Judges Sitting by Designation on the United States Courts of Appeals, 28 U. Mich. J. L. Reform 351 (1995).

6. 1997 Administrative Office Report at 33 and at Table V-2.

7. 1997 Administrative Office Report at Table B-1.

8. Id.

9. 1997 Administrative Office Report at Table S-2 (referring to case "participations"). "A case participation by an individual judge is defined as an appeal in which the judge hears oral argument or where the appeal is submitted on briefs." 1991 Administrative Office Annual Report at 83. For example, a case typically requires three participations, one per judge, but when a case is heard en banc, it results in more participations. Looking at terminations on the merits (comprised of decisions after oral hearings or through submissions on the briefs), the preliminary data suggest that just under one fifth (18.8 percent) of those terminations had visiting judges included on the panel. In other words, one could either view the contribution overall of visiting judges by relying on a figure of a percent of workload (6.2 percent) or by referring to the number of panels (18.8 percent) on which visiting judges sat.

10. Participation by Visiting Judges in Certain Work of the Federal Courts of Appeals, 1993 through 1997, Table I (preliminary data).

11. 4.5 percent included a district judge from another circuit and 16.3 percent a district judge from within the circuit; it is not clear what percent of those judges are active as compared to senior district judges.

12. 1997 Administrative Office Report at Table S-2.

13. 1997 Administrative Office Report at Table V-2.

14. This situation is only authorized when a circuit has declared a "judicial emergency" pursuant to 28 U.S.C. §46(b).

15. The breakdown is that 6.5 percent include district judges from outside a circuit, and 8.9 percent include appellate judges from outside a circuit.

16. See Address by Justice William Rehnquist at the 75th Anniversary of the Florida College of Law, at 10 (Sept. 15, 1984).

17. Long Range Planning Committee of the Judicial Conference, The Long Range Plan (1995), Recommendation 17 at 41.

18. See, e.g., the Hon. Carolyn Dineen King, A Matter of Conscience, 28 U. Houston L. Rev. 955 (1991); William M. Richman and William L. Reynolds, Elitism, Expediency and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273 (1996); Lauren K. Robel, Private Justice and the Federal Bench, 68 Indiana L. J. 891 (1993).

19. Of 51,194 dispositions, 10,357 terminations occurred after oral hearings. 1997 Administrative Office Report at Table B-1.

20. See Judith Resnik, The Death of Appeals?, 5 Fifth Circuit Rep. 637 (1988).

21. See, e.g., the Hon. Jon O. Newman, 1,000 Judges--The Limit for an Effective Federal Judiciary, 76 Judicature 187 (1993); the Hon. Gerald Tjoflat, More Judges, Less Justice, ABA Journal, July 1993 at 70. Compare the Hon. Stephen Reinhardt, Too Few Judges, Too Many Cases, ABA Journal, Jan. 1993 at 52.