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Politics Rides the Circuits - State and National Judicial Itineracy

NCJ Number
Justice System Journal Volume: 5 Issue: 2 Dated: (Winter 1979) Pages: 115-169
P G Fish
Date Published
55 pages
This paper outlines institutionalized itineracy in its State and Federal forms, reviews arguments for and against the practice, and describes the Federal judicial transfer system.
The various forms in which judicial transiency had been and continues to be practiced in the United States since the earliest English settlements include traveling courts, circuit riding, rotation, and central courts of travelers. Unification and centralization of systems in most States vests the power of designating judges' transfers in an administrative court office from which assignments are issued and censure exercised for noncompliance. Among the advantages of a mobile judiciary service are accessibility, political and law unification, neutrality, independence, and equalitarianism. Arguments critical of the practice cite personal hardship, job disincentive, administrative chaos, and hurried, irrational justice. The Federal judiciary system today is composed of 11 courts of appeals in as many circuits and 95 district courts. Within this structure of geographically confined courts, flexible systems transfers operate within and without the circuits. Lateral assignments designate judges to serve in districts other than their own. Vertical designations require circuit justices to serve temporarily on district courts when the public interest so requires; i.e., usually to relieve district court congestion. Although regulated by the Intercircuit Assignment Committee, which seeks to foster rational nationwide deployment of judges, the transfer system is highly competitive and personal. Historically, the judges' cooperation with undesirable assignments has been considered compulsory, but disciplinary measures have been removed from statutes and the issue remains controversial. Additional reasons for practicing judicial itineracy are that it represents an educational socializing experience, fosters the judicial public image, and satisfies personal wanderlust. However, the practice may be used punitively as exile from a desirable post and has been known to foster unlawful judicial outcomes when deliberately abused. Over the past 20 years (1959-1978), most transfers have been lateral among district courts. The percentage of days spent on intracircuit assignments has substantially exceeded those spent by all classes of judges on intercircuit assignment. Judges designated to sit on courts of appeals during 1975 through 1978 were predominantly vertically assigned district judges from within the circuit. Further empirical study of these practices is urged. Footnotes and tabular data are provided.