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November 23, 2009

Is there a conflict-of-interest (and a real bias problem) when district judges help define a circuit's sentencing standards?

As noted in this post, today Sixth Circuit panels in two cases split over whether district judges had sentenced reasonably in two drug cases.  Beyond the specifics of the two rulings, I find especially noteworthy the fact that the "swing" voter helping to make up the two-judge majority opinions in these cases are district judges from within the Sixth Circuit sitting by designation.  Though I think there are practical benefits from district judges sitting by designation on circuit courts, I feel it is hinky for district judges in these kinds of cases to be key votes deciding the nature and application of reasonable review.

One might develop a general argument that district judges when sitting by designation are always likely to be inclined to affirm the work of fellow district court judges.  But whatever one thinks of this general notion, there can be little doubt that district judges will have a considerable personal/professional bias when considering an appellant's claim that the sentence imposed below was unreasonable.  Circuit reversals of sentences on reasonableness grounds (as opposed to guideline calculation errors) are relatively rare, and district judges know that any and every such reversal will be an important and consequential precedent that litigants will stress in future sentencing proceedings.  District judges, knowing that they have to impose reasonable sentences in all future cases, surely will be disinclined when sitting by designation to declare unreasonable any sentencing practice or result that seems anywhere close to any sentencing practice or result they have ever embraced in the past or might be inclined to embrace in the future.

I am sure that district judges when sitting by designation will always try to avoid being unduly influenced by their personal/professional bias to see circuit law develop in a manner that serves their own district court interest.  And, in legal settings where the daily work of district courts are not really at issue, this effort to avoid bias is probably good enough for government work.  But, in the sentencing universe after Booker, and especially when the circuit judges on the panel are split, having district judges as swing voters on reasonableness review just does not seem quite right.

November 23, 2009 at 10:38 AM | Permalink


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Doug, there is no "conflict of interest". You overstate the issue.

Posted by: federalist | Nov 23, 2009 10:45:55 AM

Are you saying, federalist, that there is absolutely no basis for concern here at all OR are you saying this is a concern, just a very minor one?

Posted by: Doug B. | Nov 23, 2009 10:59:45 AM

Well, I am not concerned. The issue is whether the institutional desires override neutrality. Well, the Supreme Court gets to determine cases involving its own jurisdiction. Is that an issue?

And acting with a "conflict of interest" is a serious ethics charge. I think you ought to choose words more carefully.

Posted by: federalist | Nov 23, 2009 11:28:12 AM

I think there is a conflict, but I'm not sure it wouldn't almost always apply when district judges sit by designation. The CoAs "make the rules," and district judges have to live by them. If they end up sitting on a panel deciding an issue with a federal rule of criminal/civil procedure, jurisdiction, federal habeas, conflict of laws, etc it seems like that would run into their own preconceived notions of what they do on the ground and their own "best practices." No district judge wants to get reversed, either, though on the other hand, even with these sentencing issues, many district judges might see it as a way to get other judges in line with their own best practices.

All this imputes these kinds of subconscious motives though. I still think the bigger issue is that, particularly in the Sixth, there are too many district judges who sit by designation and an already overflowing set of judges make it more incoherent.

Posted by: Greg | Nov 23, 2009 11:39:37 AM


Posted by: federalist | Nov 23, 2009 11:48:01 AM

I tend to agree with Greg. I don't see how the bias here is any less than the bias elsewhere. I think you need to make the case that the practice is wrong as a matter of policy.

As for federalist comment. The SC is a court of last resort. The CoA is not. That's a real distinction.

Posted by: Daniel | Nov 23, 2009 2:34:26 PM

In the 3rd Circuit, I am pretty sure judges sitting by designation do not hear cases from their own district. I'm not sure if that is a universal practice. Obviously it doesn't completely fix the perceived problem, but it at least keeps the judge from having to overturn the judges on her own court.

If Congress would get a judges bill through, adding the needed judgeships on the COAs (and/or if the president and Senate would at least fill the existing vacancies), that would help mitigate the need for over-reliance on district judges in the first place...

Posted by: Observer | Nov 23, 2009 3:18:32 PM

I think you are right, Greg, that this could be a wide-spread problem in all settings in which circuits are setting judge-made ground rules for what district judges can and cannot do. That said, I think the problem/concern is especially acute in the sentencing arena because (1) the reasonableness review standard is especially vague (which is mostly the fault of SCOTUS), and (2) district judges sentence dozens and often hundreds of persons each year.

In other words, I see the frequency of sentencing and the vagueness of reasonableness review to heighten my concerns about a district judges being a swing vote on sentencing appeals.

Posted by: Doug B. | Nov 24, 2009 10:11:47 AM

On your point about SCOTUS, federalist, we might throw in the point that the Framers and early Congresses created lots of mandatory jurisdiction for SCOTUS. It has only been in the last few decades that the Justices have had almost exclusive control over its docket. And I see the shrinking docket and increased partisanship and politicking over SCOTUS actions and openning to be one unfortunate consequence of this kind of docket self-dealing.

Posted by: Doug B. | Nov 24, 2009 10:14:53 AM

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