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Expect to See More Visiting Judges at 11th Circuit

Vacancies Lead chief judge to temporarily allow more than one visiting judge per panel

, Daily Report

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gavel, scale, and law book

Lawyers appearing before the U.S. Court of Appeals for the Eleventh Circuit may soon see more unfamiliar faces when they look up at the bench.

The court's chief judge has declared an emergency, such that cases may be decided by three-judge panels composed of only one of the court's judges, plus two visiting judges.

"We've got eight judges on a 12-judge court," said Chief Judge Edward Carnes, explaining the order he issued on Dec. 30.

The four vacancies on the court occurred when judges decided to leave the court or take senior status. President Barack Obama has made nominations for three of the four openings, but there is no guarantee if or when they'll be confirmed by the Senate. Two Georgia-based vacancies date to 2010 and 2012, while openings arose in Florida and Alabama last fall.

Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. Although the Eleventh Circuit generally does not use judges from outside of its membership to decide the cases it decides without oral argument—about 80 percent of the court's decisions, Carnes said—it liberally uses visiting judges for its oral argument calendar. Sometimes an oral argument panel might even comprise a fully active member of the Eleventh Circuit, one of the court's senior judges on a reduced caseload and a visiting judge from outside the court. Usually, visiting judges are district court judges from within the Eleventh Circuit's territory or senior federal judges from outside the circuit.

But the federal rule requiring a majority of a three-judge panel to come from the circuit's membership has exceptions, including that the chief judge can certify that there is an "emergency." The statute, 28 U.S.C. § 46(b), says such emergencies include, but are not limited to, the unavailability of a judge of the court because of illness.

The court's calendar includes several oral argument sessions with slots allocated for as yet unnamed new judges, Carnes said. Under the court's rules, a schedule assigning judges to hear oral arguments is set for an entire court year. (The court's year runs from October through September, Carnes explained.) The clerk's office plugs cases into the schedule later, closer to the week of oral argument. For a number of oral argument weeks, Carnes said, a panel is set to comprise an Eleventh Circuit judge, a visiting judge, and a new judge.

In the fall, said Carnes, some Eleventh Circuit judges filled in the spots allocated to new judges. But, he added, "We can't ask our active judges any more. We're just all so darn busy."

Carnes said the emergency order hasn't affected any decisions yet. As for when it will come into play, the Eleventh Circuit has strict rules about revealing the identity of panel members much in advance of oral argument sessions, but Carnes allowed that he held off issuing the order until it was necessary to allow for preparation by the visiting judges.

"It's a rule for a good reason," he added. "You want a majority of each panel composed of members of the court if you can." Carnes noted that the Eleventh Circuit does not use visiting judges for death penalty cases.

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