Professor Marin Levy has posted a new article, Visiting Judges, on SSRN. It’s a very useful piece which describes the origins of the visiting judges program in the federal courts, and provides some insider perspective on the use of visitors on the federal courts of appeal (drawn from 35 interviews with appellate judges and staff).
One persistent theme in the judicial interviews is that visiting district judges benefit from learning about the appellate process and appellate culture. That makes good sense: a trial judge who better understands and appreciates how appellate panels think is more likely to structure a written opinion with appellate reviewers in mind. And many of the circuit courts in the study had formal programs that invited new district judges within the circuit to sit by designation in their first few years on the bench.
The appellate judges recognized that they, too, would benefit from sitting by designation more frequently on the district courts. Their circuits, however, had no meaningful tradition of doing so, and indeed, many of the appellate judges worried about their own competence on the trial bench.
But the benefits of trial experience for appellate judges are just as strong, if not stronger, than the benefits of appellate experience for trial judges. Appellate panels are routinely called upon to determine whether the trial court abused its discretion, or whether its assessments of witness credibility withstand scrutiny. Having to sit as a trial judge–to rule on evidentiary objections, instruct jurors, pore through records on summary judgment, sentence a defendant, or make quick decisions on motions for preliminary injunctions–would give appellate judges an essential perspective on the litigation trenches. (It’s worth noting that many judges interviewed stated that they had already served as trial judges or at least trial attorneys. But of course, that it not the case for all appellate judges, many of whom come from academia, state appellate courts, or some other non-trial practice.)
One might even imagine a formalized shadowing or training system, in which district and appellate judges take the time to show each other the ropes of their respective benches. Of course, such a program would require administrative planning and quite likely Congressional support and approval, but it would allow the benefits of experience to inure to both levels of the federal judiciary.
I have praised Jeffrey Rosen’s new biography of William Howard Taft on this blog before. It is a lucidly framed and highly readable look into the life of the only man ever to serve as both President and Chief Justice.
My longer review of Rosen’s book has now been published on JOTWELL. Enjoy!
When I began this blog in February 2017, I hoped that its growth would coincide with a renewed interest in the organizational nature of court systems, as well as a renewed appreciation for the history of court administration and management. Whether by coincidence or design, that wish has come true in at least one respect: a batch of new scholarship on Chief Justice William Howard Taft.
In addition to Jeffrey Rosen’s fine new biography of Taft and my own piece on Taft’s role in setting the stage for federal procedural rulemaking, this year has seen the publication of Kevin Burns’s lucid assessment of Taft’s chief justiceship in The Journal of Supreme Court History. Burns sets out the historical context of Taft’s time in the center chair, and beautifully illustrates Taft’s efforts to turn the federal court system into a truly centralized, autonomous branch of government. It’s a terrific introduction for those who are new to Taft’s legacy, and a useful reference for those already familiar with his career.
Burns adds his own take as well, arguing that many of Taft’s reforms were motivated by the explicit desire to increase court access for the poor. This was not merely a manifestation of the Progressive ethos of the 1920s: Burns argues that Taft understood access, in the form of faster and less expensive litigation, to help the courts as well as the litigants. More efficient case processing would lead to more confidence in the courts and less cynicism that the courts were simply the protectors of moneyed interests.
While I do not believe that access to courts was the sole–or even the primary–motivation for Taft’s reforms, the value of access was certainly consistent with his work, and Burns is right to bring it to light. Access also fits nicely with other values that motivated Taft’s administrative efforts, such as increasing the courts’ legitimacy, instilling respect for the Constitution and the rule of law, and securing greater internal control over the management of court resources. Burns’s piece is well worth the read.
Longtime readers of this blog know how much I have come to respect William Howard Taft as a Chief Justice: his tireless efforts to modernize and autonomize the federal judiciary transformed the Third Branch forever. Now, Jeffrey Rosen has written a short and masterful book on Taft, ostensibly focused on Taft’s Presidency, but delightfully cognizant of Taft’s lifelong judicial temperament and ambitions.
I shall have much more to say about Rosen’s book soon, but in the meantime I was delighted to see him blogging at the Volokh Conspiracy last week. The subject: what would William Howard Taft do about the political challenges of our day? The final installment, on Taft’s approach to judicial independence in the face of persistent populist attacks by prominent politicians (sound familiar?) is here.