This dissertation seeks to determine the consequences of the use of visiting judges in the United States Courts of Appeals. Judges nominated to serve in the lower federal judiciary are appointed to positions divided vertically between trial and appellate courts and horizontally between geographically defined regional circuits. Regularly, however, judges transcend these distinctions and provide judicial services in a structural level or geographic region to which they were not appointed. A substantial number of cases disposed of in the United States Courts of Appeals now make use of these “visiting judges”.
Court of appeals panels employing a visiting judge deviate from the court’s typical decision-making environment. I theorize that the use of these visitors will alter the behavior of court of appeals judges in ways currently unrecognized by existing theories of judicial behavior. Specifically, I hypothesize that the availability of visiting judges will lead some court of appeals judges to strategically pursue their most preferred legal policy. I also hypothesize that the presence of a visiting judge will affect the behavior of judges serving in the courts of appeals in ways consistent with psychological theories of small group behavior.
To test these hypotheses, I perform three separate analyses. First, using data collected on the number of visits made in each regional circuit court of appeals from 1997 through 2009, I examine whether circuit chief judges strategically select visitors who share their policy preferences. Second, I examine the role of visiting judges in the decision-making process by analyzing their voting behavior in a sample of cases decided between 1997 and 2002. Third, I examine the normative consequences of the visiting judge process. Using citation patterns to measure judicial quality, I investigate whether cases decided using a visiting judge are cited differently than cases decided by panels that do not employ a visitor.
The results indicate that visiting judges induce both strategic and psychological group effects in the courts of appeals. Circuit chief judges are more likely to select visitors who share their policy preferences. While the presence of a visiting judge does not appear to change the voting behavior of court of appeals judges, cases decided by panels employing visitors are cited differently than cases decided by panels composed of three court of appeals judges. The results suggest that visiting judges should not be treated as fungible with court of appeals judges from their home circuit, and that their continued use has important implications for the development of legal policy in this level of the federal judiciary. The results also demonstrate the need for scholars to expand current theories of judicial behavior to properly incorporate insights gained from psychological theories of small group behavior, particularly when examining judicial behavior in the United States Courts of Appeals.