Ninth Circuit appeals are not always decided by Ninth Circuit judges. Because of the Court’s nation-leading workload, the Ninth Circuit regularly relies on visiting judges to fill out the panels that hear and resolve cases. But who are these visiting judges, and exactly how prominent is their role at the Ninth? In this series of posts, we here at Left Coast Appeals hope to examine some of the names and numbers behind these temporary (and, in some cases, not so temporary) Ninth Circuit jurists.
Available statistics confirm, at least to some extent, the impression that the Ninth Circuit is particularly reliant on visiting judges. Nationwide, visiting judges constituted 3.4% of the judges who decided federal court of appeal cases terminated on the merits in the 12-month period ending September 30, 2019. In the Ninth Circuit, that figure was more than twice as high, at 7.5%.
Perhaps surprisingly, the Ninth Circuit was not the runaway winner in this category. That honor, instead, belonged to the First Circuit, at 15.3%. The Second Circuit was also nipping at the Ninth Circuit’s heels at 7.2%. But these figures encompass all cases terminated on the merits. The Ninth Circuit might surge back to the top of the pack were one to focus only on cases submitted to a merits panel — and not, as is often the case in the Ninth, resolved by an initial screening panel.
To provide a more complete picture of the Ninth Circuit’s reliance on visiting judges, we examined every case the Court scheduled for oral argument between January 2014 and June 2020. (Here, we must acknowledge and thank Lydia Davenport and Carleigh Zeman, who conducted the crucial research and analysis.) Over the course of this period, the Court invited 233 different visiting judges to sit on Ninth Circuit panels. All told, these visiting judges sat for a total of 1,591 days and heard more than 8,500 cases.
What do these numbers mean in practice? An active Ninth Circuit judge participates in approximately 40 days of sittings every year (excluding potential en banc sittings). Yet visiting judges, when considered together, hear many times more cases than the average Ninth Circuit judge. Last year, 91 visiting judges sat for a combined total of 247 days, with the most frequent invitees sitting for as many as 10 days. Effectively, the Ninth Circuit’s complement of 29 active judges and 18 senior judges is supplemented by the equivalent of 6 additional full-time judges drawn on a rotating basis from throughout the country, with some of those individual judges taking on as much as a quarter of the workload of a Ninth Circuit judge. As a result, approximately a third of all cases scheduled for argument in the Ninth Circuit feature a visiting judge on the panel.
Next week, we take a closer look at who these judges are and from where they hale. A quiz question in anticipation: which judge, with 57 days sitting on the Ninth Circuit since 2014, is the Ninth Circuit’s most frequent guest?