Last week’s decision in the Diamond Antitrust case, where an en banc Third Circuit undid a 2-1 panel decision in which a district judge, sitting by designation, was one of the members of the majority, raises the question of what authority there is for district judges to sit by designation on Circuit Court panels. The answer is 28 U.S.C. §292(a), which permits the chief judge of a Circuit to designate and assign a district judge to sit on the Court of Appeals “whenever the business of that court so requires.” Other subsections of that same statute permit the chief judge of a Court of Appeals or the Chief Justice of the United States to assign district judges to Courts of Appeals on other grounds as well.
One might question whether it is appropriate, or even constitutional, for a district judge, who has not been nominated by the President or confirmed by the Senate to a seat on any Circuit, to sit on a Circuit panel. The issue has never been directly litigated.
The most analogous case seems to be Glidden Co. v. Zdanok, 370 U.S. 530 (1962). One of the questions in that case was a judge of the Court of Claims could sit by designation on an Article III Circuit panel. Prior Supreme Court cases had found that the Court of Claims was not an Article III court but was instead constituted under Article I. Thus, the argument was that Court of Claims judges could not sit in place of Article III judges. However, Congress later declared that the Court of Claims had been established under Article III.
The majority in Glidden found that the Court of Claims had been established under Article III, as Congress had declared, so that there was no problem with Court of Claims judges sitting on Courts of Appeals. Justices Douglas and Black dissented, expressing the view that the Court of Claims was an Article I tribunal and that Court of Claims judges could not properly sit in place of Article III judges.
Glidden does not address directly whether it is appropriate for district judges to sit by designation on Circuit panels. That practice, however, is a longstanding one. Issues raised by that practice are discussed at length in Richard B. Saphire & Michael E. Solomine, Diluting Justice on Appeal? An Examination of the Use of District Court Judges Sitting by Designation on the United States Courts of Appeals, 28 U. Mich. J. L. Ref. 351 (1995). There may be valid concerns with allowing district judges to sit by designation on Circuit Courts of Appeals. Most likely, however, the practical need for this will be found to outweigh any such concerns if a challenge is ever brought.