Have robe, will travel

Let’ s say you are prosecuting or defending a criminal or civil case in your local federal district court, and, out of the blue, your case get reassigned. Not only do you have new judge, but the new judge is a senior status district judge from far away.  A reader–and former law clerk to a federal district judge–asks: How does that happen? Here’s a primer.

Initially, I should qualify what I next write.  My experience as a senior status district judge taking “outside” cases is limited by the fact that I have only been on senior status for about two years.  So, I don’t know much about this topic. For those familiar with this blog, that caveat will be deemed redundant. Anyway, here goes.

First, let me tell you about the cases I have (or have had) in other districts and with my court of appeals.  I have had cases within my circuit but in other districts.  For example, I have a death penalty habeas corpus case in Arkansas, and, until it settled, I also had a significant environmental case from that state involving a river and a power plant.  I got the death penalty case because the judge who had been handling the case died, and the other judges had too many death penalty cases.  I got the high-profile  environmental case because the judge who was handling the case recused and it was then thought that a judge from outside the district was needed. In Iowa, I have an employment-related civil rights case against the Justice Department. I got that case because of recusals of the other judges.  I have a tax case in South Dakota, and I got that case because all the judges recused.

Outside my own circuit, I have had cases in California and New York.  I got the California case because the district court was overwhelmed with a backlog of cases.  Unfortunately, I had to withdraw from the California case (a civil rights matter where the manufacturer of a stun gun was the primary defendant) shortly before trial when my wife was diagnosed with cancer.  My cases in New York were all habeas corpus cases. I got those cases because that New York district handles a particularly large volume of habeas cases and the district needed help with its backlog.

I have also sat with my court of appeals as a senior status district judge.  That occurred in January of this year, and involved a whole variety of cases, both criminal and civil.  While the 8th Circuit does not need a lot of assistance from visiting judges, I got the assignment because a Circuit judge suddenly fell ill.

Second, there is a formal method for securing work outside your circuit and an informal method as well.  In order to go outside your own circuit, the Chief Justice must authorize you to do so. The formal method involves signing up to take cases outside your circuit with the Judicial Conference Committee on Intercircuit Assignments. That committee takes requests from courts for help, and then seeks senior judges willing to help.  The committee matches senior judges with district courts that need help.  That is how I received the California designation.

There is also an informal method and that is how I received the gig in New York.  That is, I worked with the clerk from that district on a national advisory committee dealing with pro se law clerks. From that committee work, I learned that the New York district needed help with habeas cases and I offered to take some of those cases. The clerk contacted his chief judge and then worked with the circuit executive of his circuit and staff in Washington to secure the intercircuit assignment.

Note that a senior status judge must also receive permission to take additional cases from his or her chief district judge. That check is in place to make sure the senior status judge is current with his or her regular docket of cases.

Third, assignments within a judge’s circuit take place much less formally.  Typically, a senior status judge informs the chief judge of his or her circuit that the judge is willing to sit elsewhere.   When the chief judge of a district needing the help of a visiting judge contacts the chief judge of the circuit for help, the circuit chief judge then simply makes the designation.  In my experience, the circuit chief judge always contacts the senior status judge before making the assignment to make sure the judge remains willing and able to provide assistance. Again, a senior status judge must also have the permission of his or her chief district judge to take these assignments.

Fourth, the motivation to take extra cases, whether within the judge’s circuit or otherwise, is varied. Some judges like to travel. (I don’t.) Some judges like to take on new challenges. (Me, not so much.) Other judges want to build up or maintain their caseloads in order to keep a full staff. (That’s my motivation.)

Keep in mind that senior status judges are working “for free” and they have a statutory right to turn down cases. More recently, however, the federal judiciary as a matter of policy has begun to strictly insist that senior status federal judges work hard enough that the outlay of personnel money for their staffs is justified. In the 8th Circuit, that means a senior status judge must have a weighted caseload equivalent to the weighted caseload of an active district judge in the least busy federal district court in the nation.

I currently take a draw of Nebraska cases equivalent to the draw taken by my active district judge colleagues, and that is more than enough to provide me with staff. Nonetheless, I began to take outside assignments to gain experience with the process. If I ever needed to increase my caseload to keep my staff, I would know how to do so.  Why do I want to keep my staff? Well, they need the work, and I care deeply about each and every one of them.

In summary, it is not simply a matter of bad karma if you draw an old fogey from far away. There is a process at work. By and large, the process adds value to the federal judiciary at minimal cost.


9 responses

  1. Dean,

    South Dakota has had (and continues to have) some really great senior status district judges. Larry Piersol is one of those. For example, when Larry was an active judge, Chief Justice Roberts appointed Judge Piersol to the Executive Committee of the Judicial Conference of the United States. If you are “inside baseball,” that was a very big deal and is evidence of Larry’s extraordinary reputation as a great judge and a deep thinker. Larry is also a truly accomplished painter. His works have been exhibited widely. The fact that Larry continues his judicial service while in his 70s significantly benefits South Dakota and the federal judiciary more generally. That Larry is an all around good guy is an extra nice topping too.

    All the best.


  2. I was nominated in 1992. The record is here.

    My nomination was supposed to take place on April Fool’s day, but came a few days later. Specifically, I was nominated by George H.W. Bush on April 7, 1992, to a seat vacated by Warren K. Urbom. I was confirmed by the Senate on May 21, 1992, and received my commission on May 26, 1992. Although I was nominated by a Republican, I had the support of both Senators who were Democrats. That was important particularly because the Senate was then controlled by the Democrats.

    Because there were two seats open in Nebraska, the selection process was tricky. I won’t go into details but another lawyer (a very good one in my view) was under consideration for the second seat. He was General Counsel for the Nebraska Republican Party. That lawyer did not have the support of the Democratic Senators. So, from August of 1991 to April of 1992, I was on tender hooks as the White House and one of the Senators played chicken with each other. I never figured out how or why the impasse was broken, but my nomination went forward and the other lawyer’s failed.

    Unfortunately, what is going on now in the Senate delays confirmation hearings far longer than when I went through. The politics are much nastier now, although they were not of the bean bag variety in 1992. Remember what happened with Justice Thomas or Judge Bork just a few years earlier. Nonetheless, the system now is so screwed up that I am absolutely convinced that many folks are turning down nominations because they simply don’t want to go through the agony. That is terribly sad.

    All the best.


  3. Speaking of traveling, your July 24 order granting Deborah Anne Czuba’s motion to withdraw in Roberts v. Hobbs is making its way around the Internet. Thank you for calling out those responsible for this pitiful mess.

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