Random Assignment of Judges at the Court of Appeals and the Decline in Transparency in the Panel Selection Process (Part 1)

Back in 2000, I co-wrote an article about the process by which judges were chosen for panels on the US court of appeals and the process by which the panels were assigned cases.  See Neutral Assignment of Judges at the Court of Appeals.  

The fundamental question was whether cases were assigned to panels in a neutral manner. The question arose because there was, as the paper chronicled, a clear example of non-neutral assignment that arose out of the Civil Rights era in the 1960s. The conclusion of the paper was that there was no failsafe method that ensured neutral assignment, although the 10th Circuit used a computer program that came the closest (and left a paper trail of any changes made to panel assignments).  

As part of that paper, we reviewed the time period for identifying the members of the panel to the parties in any appeal.  Most identified the panels shortly before oral argument.  When the paper was published in 2000, there was one noticeable exception (and one more modest exception). The DC Circuit told parties the identity at the time oral argument was set, before briefs were filed.  As we explained in a companion document that contained additional empirical information: 

  • The decision [by the DC Circuit] was made deliberately by the judges of the circuit. Chief Judge Edwards indicated that the change was primarily motivated by the convenience of the parties. He also noted, however, that it had the potential affect of inducing settlements. As he noted: "It occurred to us that this false assumption [that panel composition permitted prediction of the outcome] might lead some parties to settle their claims to avoid certain panels. We were happy to accommodate those who might thus settle their cases and thereby reduce our caseload." Letter from Harry T. Edwards, Chief Judge, D.C. Circuit, to Professor J. Robert Brown, Jr., Sept. 24, 1998. It should be noted that Judge Edwards also indicated that the judges were unaware whether early notification in fact actually produced more settlements. Id. 

The Eighth Circuit disclosed the identity of the panel "at the time the briefs have been filed a month or so in advance."  No other panels disclosed the identity until a few weeks before oral argument and, in some cases, not until the day of oral argument. 

We revisit all of this because of a recent article disclosing changes in this approach.  According to an article in the National Law Journal, three circuits disclose the identity of the panel the day of argument (4th, 7th & Federal) while the others provide a bit more notice.  The article includes a table that shows the disclosure date for each circuit.  

Most interestingly, the article noted that the DC Circuit had abandoned its practice of disclosing at the time the case is assigned to a panel and replaced it with a 30 day advance notice period.  See DC Circuit Manual, Disclosure of Panels and Dates (rather than disclosing panel "in the order setting the case for oral argument" the "composition of the merits panel will be posted on the Court’s internet site, usually 30 days before the date of oral argument, and will not be disclosed before that time").  

We will discuss the possible reason for, and consequences of, the changes in the next post.  

J Robert Brown Jr.