Affirming the District Judge: An Empirical Analysis of the Effect of District Judges Sitting by Designation on Circuit Court Panels

Abstract

Ten of the 12 U.S. courts of appeals regularly invite district court judges to take part in appellate decisions. This practice, known as “sitting by designation,” has received mixed reviews from judges and scholars. Some argue that the practice undermines democratic legitimacy and collegiality on the courts of appeals. Others contend that district court judges sitting by designation have little effect on the process because they are deferential—perhaps far too deferential—toward their circuit court brethren. Despite this ongoing debate, few studies have empirically analyzed the effects of judges sitting by designation on appellate court decision making. Here, we empirically assess whether panels that include a judge sitting by designation are more likely to affirm the district court decision. We hypothesize that judges sitting by designation are more likely to affirm district court decisions, and the panel effects associated with a judge sitting on a circuit panel will result in more “affirm” votes by circuit court judges sitting with those district court judges. Our analysis of 9,154 court of appeals decisions confirms that the presence of a judge sitting by designation does have a positive and statistically significant effect on the rate at which court of appeals judges vote to affirm district court decisions.