THE OFFICE OF THE CHIEF CIRCUIT JUDGE.

• Author: Levy, Marin K.

INTRODUCTION 2426 I. THE HISTORY OF THE CHIEF CIRCUIT JUDGESHIP 2431 II. AN ACCOUNT OF THE CHIEF CIRCUIT JUDGESHIP IN THE 2437 MODERN DAY A. Methodology 2438 B. Findings 2440 1. Defining the Role, Necessary Skills, and Training 2440 2. Describing the Work of the Chief Circuit Judge 2449 3. Collecting Views of the Current Statutory Framework 2474 CONCLUSION 2481 APPENDIX 2482 INTRODUCTION

Despite famously being called, merely, "one among equals," (1) the Chief Judge of a federal court of appeals plays a significant role on their court. (2) Internally, the Chief Judge presides over every oral argument that their panel hears, including all en banc panels, (3) and usually makes the opinion assignments when in the majority. (4) The Chief Judge influences how the court's sitting calendar is set (5) and may select visiting judges to sit by designation. (6) The "Chief" manages several units--including the Clerk's Office and the Staff Attorney's Office--and oversees the circuit's budget. (7) The Chief receives complaints of misconduct against judges in their circuit, (8) and then is tasked with conducting a preliminary review of each complaint. (9) They make decisions about their court's own governance structure, including which judges are to be assigned to which committees, and lead their circuit's judicial council (10) and judicial conference. (11) Externally, the Chief Judge serves as their court's representative to the Judicial Conference of the United States, the national policy-making body for the federal courts. (12) Outside of official duties, the Chief Judge may initiate projects, (13) which are carried out in the name of their court. (14) One might well say that the Office of the Chief Circuit Judge "contain[s] multitudes." (15)

It is precisely because the Office comes with considerable responsibilities--and of such different kinds--that it is important to understand how the tasks of the Office have been carried out by different office-holders. How do Chief Judges manage all of these tasks? What do they delegate and what do they decide themselves? How do they balance the administrative work of the Chief with the judicial work of an appellate judge? How were they trained for this position? And how much variation is there on these matters depending upon the Chief Judge and their circuit?

The academic literature is almost silent on these matters. Writing in the early 1980s, Judge Wilfred Feinberg, then the Chief Judge of the Second Circuit, commented that "[l]ittle has been written" on the subject of Chief Judges. (16) With a few notable exceptions--including important work by Tracey George and Albert Yoon as well Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek (17)--Feinberg's comment remains true nearly forty years later. One can find individual accounts of Chief Judges--reflections by judges on their time as Chief (18) and tributes to Chief Judges from friends and admirers. (19) And there is a valuable administrative account of the role, based primarily on the study of one Chief Judge, Alfred T. Goodwin of the Ninth Circuit, who served from June 1988 to 1991. (20) Finally, the Federal Judicial Center issues comprehensive administrative guides, (21) though those are designed to be internal court documents, and the most comprehensive study is now forty years old. (22) Much has changed in the courts in the interim. As but one example, filings per judgeship in the courts of appeals have increased nearly fifty percent--from 194 in 1984 (23) to 288 today. (24) The courts function quite differently after four decades, and so do their administrative leaders.

This Article offers a descriptive account of the role of Chief Judge in the modern day, noting the variation that exists from circuit to circuit and from Chief to Chief. As with other studies that seek to provide a descriptive analysis of an office or phenomenon within the courts that is not well documented, this Article rests on interviews conducted with the individuals who possess the greatest expertise on the subject--in this case, an unprecedented set of interviews of all of the current Chief Judges, themselves. Specifically, as part of a larger book project on the internal operations of the federal courts of appeals, (25) the authors interviewed all (then) sitting Chief Judges of the eleven numbered courts of appeals and the United States Court of Appeals for the District of Columbia Circuit and the United State Court of Appeals for the Federal Circuit. We also interviewed seven former Chief Judges from a variety of circuits to acquire a broader view of the role. Finally, we sent questionnaires to (and received responses from) Chief Clerks of all thirteen circuits.

Beyond providing a descriptive account of the Office of the Chief Circuit Judge, this Article raises questions about how the Office is structured. Under the statute, the Office of the Chief Judge is to be filled by the most senior judge in regular active service who is under the age of 65, provided that the judge has served at least one year as circuit judge and has not previously served as Chief. (26) Given the range of responsibilities of the Chief Judge, is the current selection method the optimal one? (27) Should the term length-which is currently set at seven years (28)--remain or be changed in any direction? And are there any other changes that should be made to the current statutory scheme?

The Article presents the views of the judges on these scores. Together, they make a compelling case for retaining the current selection method, noting that the alternative methods--including that Chief Judges be appointed by the President or elected to the Office by the judges of their own court--come with significant drawbacks. (29) The Article then reports that most Chief Judges favored the current term length, though there was some support for shortening it slightly. It concludes by noting, according to those interviewed, how the training for the position might be enhanced to assist Chief Judges in the future.

The Article proceeds as follows. Part I begins by tracing the history of the Office of Chief Judge, beginning with the 1891 Evarts Act. That Act created the modern federal courts of appeals, (30) and identified the most senior circuit judge as the one who would preside on a panel. (31) The administrative responsibilities of the senior circuit judge grew in 1922 when Congress required the Chief Justice of the United States to summon all senior circuit judges to an annual conference in Washington, D.C. (32) (This conference would eventually become the Judicial Conference of the United States.) (33) Another milestone for the Office includes the creation of the term "Chief Judge" in 1948. (34)

Part II--the heart of the article--then turns to the modern day, reporting the information gathered from interviews with the then-current Chief Judges of the federal courts of appeals and some of their predecessors. (Included as well are responses to a questionnaire sent to Chief Clerks of Court.) Specifically, this Part discusses how different Chief Judges perceive and carry out the job. It begins with how the Chief Judges themselves define the role--with some describing it primarily as maintaining the legitimacy of the court, others casting it in terms of building relationships and fostering collegiality, and others describing the Chief's main responsibility as "keeping the trains running on time." (35) It then turns to the considerable administrative responsibilities that Chief Judges are tasked with, and how they carry them out--from the different ways that Chief Judges ensure that the caseload is kept moving (that opinions are promptly filed) to how Chief Judges oversee their administrative units and what they do and do not delegate. (36) The final Section takes up what the Chief Judges think of the current statutory scheme--particularly its selection method and term length--and what changes, if any, the Chief Judges would make to the role. Ultimately, this Article seeks to demonstrate how extensive the Chief Judge's responsibilities are, how different office-holders have approached the position, and how modest proposals might be considered for better service in the future.

1. THE HISTORY OF THE CHIEF CIRCUIT JUDGESHIP

   The story of the Chief Judgeship is surprisingly the story of an office that faded into existence. (37) Its precursor, the senior circuit judgeship, was created by the Evarts Act in 1891 at the same time that the Act created the circuit courts of appeals. (38) The designation was relevant when determining who would preside, if a Supreme Court Justice was not in attendance, though little else. As the courts expanded, however, the role, too, expanded. But as this Part shows, the role of Chief Judge has at times expanded almost by default. In the words of then-Chief Judge Wilfred Feinberg, "[t]he job of chief judge had the virtue of being there, and into this receptacle custom and Congress have poured a potpourri of duties...." (39)

   The Judiciary Act of 1789 ("1789 Act") famously established the Supreme Court (40) and thirteen district courts to hear cases in the first instance. (41) What it did not create was a standalone tier of intermediate appellate courts with solely appellate jurisdiction. Rather, the Act divided the thirteen districts into three circuits, and created circuit courts with both original and appellate jurisdiction, to be composed of two Justices of the Supreme Court and one district judge. (42) That arrangement shifted somewhat following the Judiciary Act of 1869, which, among other things, created one circuit judgeship for each existing circuit. (43) But the 1869 Act made clear that the circuit courts would generally still consist of Supreme Court Justices and district judges along with the new circuit judges, and that Supreme Court Justices should preside if present. (44)

   The structure of the federal judiciary changed more dramatically in 1891...