John Pfaff (Fordham) proposes a reform: Randomly assign and randomly rotate appellate judges to different circuits. It dilutes the power of stacked (and lawless) courts through random distribution. It applies to lower courts a version of Epps & Sitaraman’s lottery system. Quick thoughts:
• To answer John’s initial question: Nothing in Article III prevents Congress from doing this prospectively. Article III should not prevent Congress from applying this to current judges. A commission to a specific court lacks Article III significance since nothing in Article III requires those courts; Congress should be able to redesign the circuits or the circuit designations. We might analogize to the 5th Circuit judges who became 11th Circuit judges in 1980 or to the 9th Circuit Judges who would become 12th Circuit Judges if Republicans were to finally break up the 9th Circuit. Changing geographic assignments or designations does not change the nature of the job.
• One-year rotations is probably too short. I think each assignment should be at least two years.
• Rotation weakens collegiality within each circuit. Pfaff believes this is a good thing, as familiarity among the judges weakens their willingness to criticize one another. The tenor of many opinions suggests that is not the case. And collegiality/familiarity is important to make the engine of the court function. This is not to reject the plan; only to note the costs.
• I do not think this can work for district courts, given the longer length of trial-court litigation and the need for ongoing, often long-term judicial supervision and engagement (e.g., criminal sentences, injunctions, consent decrees).
• It might pair nicely with Segall’s evenly divided Court. Randomized courts of appeals eases the political pressure on the risk of an evenly divided SCOTUS.