Keeping Tabs on the Ninth Circuit
November 24, 2020 - Ninth Circuit Insights

Know Your Ninth Circuit Panel: Who Gets Invited?

Know Your Ninth Circuit Panel: Who Appoints Visiting Judges?

Last week, we noted that the Ninth Circuit’s visiting judges together perform the work of roughly 6 additional Ninth Circuit judges. But who, exactly, secures an invite to help serve as these supplemental members of the Ninth Circuit? This week, we examine our data set of every case scheduled for argument between January 2014 and June 2020 (diligently compiled and carefully analyzed by Lydia Davenport and Carleigh Zeman) to get a better picture of what these visiting judges do when they’re not helping the Ninth Circuit deal with its massive caseload.

All visiting judges are, of course, Article III judges, and they are drawn from the federal district courts, the other federal circuits, and the Court of International Trade. District court judges comprise the clear majority of Ninth Circuit invitees, accounting for approximately 79% of all guest sittings over the period investigated. Judges from the federal circuits account for another 19% of guest sittings. The judges of the Court of International Trade round out guest sittings with the final 2% (not bad for a court with a total of only 12 judges currently hearing cases).

Geographically, it may come as little surprise that a plurality of visiting judges don’t need to travel particularly far to “visit” the Ninth Circuit. A total of 34% of guest sittings are taken on by district court judges from within the Ninth Circuit, with California district court judges alone accounting for 13.2%. The most frequent out-of-circuit home for visiting judges is the Second Circuit, which between its district and court of appeals judges fills approximately 15% of the Ninth Circuit’s guest sittings. Tailing the Second Circuit are the Eighth Circuit (at 7%), and the Fifth, Seventh, and Tenth Circuits (all at around 5%). On the other end of the spectrum, the Ninth Circuit has seen no visiting judges from the district courts of Arkansas, Delaware, Kentucky, New Jersey, New Mexico, North Carolina, Oklahoma, or South Carolina.

Certain judges visit the Ninth Circuit much more frequently than others—with some doing so enough that the “visiting” label might not quite fit. In the time period examined, four judges in particular stood out, and we list them here in ascending order. Coming in fourth: Judge William Sessions III of the District of Vermont, who spent 26 days hearing Ninth Circuit cases. In third: Judge Frederic Block of the Eastern District of New York, who edged out Judges Sessions with 27 days of Ninth Circuit arguments. In second (and the most frequent answer to last week’s quiz question): Judge Jed Rakoff, who spent 44 days visiting the Ninth Circuit on loan from his home court in the Southern District of New York. And coming in first (and the correct answer to last week’s quiz question): Judge Edward Korman of the Eastern District of New York, with an impressive 57 days of Ninth Circuit service. 

Next week, we dig further into the data to examine any potential leanings or other trends among visiting judges. This week’s quiz question: which president appointed the judges who together account for nearly 38% of the Ninth Circuit’s guest sittings in our sample, far and away the most of any president?