Aaron Bayer's latest National Law Journal article (Feb. 23, at pg. 10) is How Fair Are Appellate Panel Selections? Same-sex marriage challenge highlights array of factors courts take into account when assigning cases.
Questions about panel selection are not new. The most famous involved the panel-packing efforts of the U.S. Court of Appeals for the Fifth Circuit during the civil rights era. Scholars have shown that the circuit's chief judge in the 1960s, Elbert Tuttle, manipulated the assignment of appeals both to appellate panels and to three-judge district courts so that at least two liberal judges were on each panel. This was done in an effort to ensure implementation of the U.S. Supreme Court's desegregation rulings. More recently, scholars have undertaken statistical analyses of whether the panel selection process in the federal circuits is truly random.
The Ninth Circuit's "General Orders," which detail its operating procedures, reveal just how complicated it is to assign judges to panels in a way that is random but also takes into account the logistics of running a court of that size and geographic scope. The clerk's office uses a computer program to try to equalize the load among the judges, but it considers an array of other factors.
The clerk tries to, among other things, ensure that each active judge sits the required number of days each year; schedule each active judge to sit with every other judge on the circuit about the same number of times over a two-year period; make equal assignments of all active judges to sit in each of the main geographic locations in the circuit; and replace a panel member who is disqualified or recused or who has fallen behind in producing opinions. The clerk's office then selects equally weighted "clusters" of cases for each panel, "without regard to which judges are sitting on the panels."
Given everything the circuit tries to take into account, it is difficult to imagine that the process could be truly random, but it is equally difficult to conclude that it could be manipulated to assign cases to a panel that has a predisposition toward a particular outcome.