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Random Assignment of Judges at the Court of Appeals and the Decline in Transparency in the Panel Selection Process (Part 2)

We are examining the recent decision by the DC Circuit to identify panels not when the case was assigned to judged but at a more arbitrary 30 day period prior to oral argument.  The process of assigning judges and cases at the court of appeals was extensively examined in Neutral Assignment of Judges at the Court of Appeals.  

As noted in the earlier post, several circuits disclose the identity of the panel on the day of oral argument. Most provide notice of the panel a week or ten days before argument.  Two, the 8th & DC, notify parties about a month in advance.  The DC Circuit previously allowed parties to know the identity of the panel prior to the filing of briefs, permitting parties to address specific arguments to specific judges.  That, however, changed earlier this year.  See DC Circuit Handbook, Disclosure of Panels and Dates.  

The reason for the change in the DC Circuit is unexplained.  Nonetheless, the article in the National Law Journal had an interesting explanation from Judge Easterbrook at the 7th Circuit.  Depriving parties of the identity of a panel until the day of oral argument, the approach in that circuit, was intended to ensure that the parties are prepared not for specific judges but "to face the circuit as a whole."  As he stated in the article: 

  • "Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place." 

Whatever the merits of the approach (and not all circuits agree with it), Judge Easterbrook's fundamental argument that parties should not be allowed to easily address arguments to the specific members of the panel at the brief writing stage is observed by all of the circuits (at least since the one outlier, the DC circuit, changed its policies).  No circuit reveals the identity of a panel prior to the filing of briefs.  

This approach, however, has at least one significant downside.  As we noted in Neutral Assignment of Judges at the Court of Appeals, the circuits did not have a failsafe system for ensuring that judges and cases were assigned on an entirely neutral basis.  One place where the theoretical risk of non-neutral assignment can occur is with respect to changes in panel composition.  

Once a panel has been assigned a case (and this can occur months and months in advance of oral argument), panel composition can change.  A judge may be conflicted from a particular case and drop off the panel.  A judge may have an unexpected illness.  Some circuits (at least at the time we wrote our article) had liberal policies of allowing judges to switch panels.  In these circumstances, replacements need to be selected.

Depending upon the system for replacing judges departing from panels (sometimes judges find their own replacement, sometimes the circuit executive finds the replacement, sometimes the chief judge, these are discussed here), replacement judges can be selected based upon their views on a case or cases already assigned to the panel.  The issue is not whether this occurs but whether it could occur.  Because parties do not, for the most part, know if the panel has changed, there is little ability by private parties to police this issue and help ensure that the risk of non-neutral assignment remains theory rather than practice.  

The need for secrecy on the identity of the panel is dubious. The idea that parties need "surprise" with respect to the identity of the panel is unproven, unnecessary, and likely to benefit a select class of lawyers (those who routinely argue at the circuit or come from large firms with the resources to provide judge specific information on a same day basis).

The need to keep the identity of panels secret until after briefs have been filed likewise seems dubious. First, briefs will sometimes not contain judge specific arguments even when the identity of the panel is known. Second, when they do contain such arguments, this is likely to be, at most, a modest supplement. Presumably, the parties must use most of the limited space in a brief to make the traditional arguments that are necessary to convince the entire panel.  Third, writing briefs for a particular panel runs the risk of an inadequate brief should the members of the panel change.  Fifth, the policy acts as an unwritten prohibition on providing judges on the panel with information that they might need to make an informed and consistent decision.  This seems counter intuitive both for parties and the judges.  Finally, the en banc process provides a mechanism for correction should advance notice of the panel's identity result in a decision inconsistent with the views of the circuit.  

The appellate courts, therefore, have a very weak argument for maintaining the secrecy of panels, at least to the extent secrecy also shrouds from the public eye any changes in composition.  A middle ground in this area would be to reveal the identity of the panel before oral argument and note any changes in composition that have occurred since the case was first assigned to the panel.    

J Robert Brown Jr.