Federal Circuit Courts and "Visiting Judges"

Today’s New York Times features an article, by Adam Liptak, about a decision recently handed down by the United States Court of Appeals for the Sixth Circuit, in Cinncinatti. The case involves the First Amendment’s Establishment Clause, and was decided by a three-judge panel consisting of “Ronald Lee Gilman and Karen Nelson Moore, both of the Sixth Circuit, and Arthur J. Tarnow, a visiting Michigan trial court judge.”

What is a visiting judge? I have heard this term before, although always in regards to local trial courts rather than the United States Court of Appeals.

A visiting judge is a judge from some other jurisdiction pressed into duty because the Federal court was shorthanded because of vacancies or recusals or heavy workload.

Ordinarily visiting judges are District (Trial) Judges. It helps the Court of Appeals with their workload and also gives the Visiting Judge a nice feeling – it’s like being called up to the Big Leagues, though temporary. Also I would imagine it helps maintain good relations between the trial judges and the appeals judges (who are always “grading their papers”); the trial judges get to walk a mile in the shoes of the appellate judges.

I’m not sure but I would bet that the 6th Circuit includes Michigan. At least in the 5th Circuit (which includes Texas), the visiting judges are from the jurisdictions within the 5th Circuit. It might even be mandatory that the visiting judge be from “within” the Circuit.
JohnW77707, Esq.
Admitted to Practice in Federal District Courts (E.D.Tex, N.D.Tex., S.D.Tex.) and the Third and Fifth U.S. Courts of Appeal

This is called “sitting by designation.” I’ve seen cases in which a District Court judge (that is, a trial judge) sits by designation in the Court of Appeals embracing his District (although, of course, not over a case he presided over at the trial level). I’ve also seen many cases where circuit judges from one circut sit with a panel in another circuit.


28 U.S.C. 291 to 297 provide for the assignment of judges of federal courts to temporarily sit on other federal courts. Essentially, any active or retired (senior) judge of the U.S. Court of Appeals, U.S. District Court or U.S. Court of International Trade (Article III Court) can be designated to sit as a judge of any other Article III Court by the designation of the Chief Justice of the United States or by the Chief Judge of a circuit (if the assignment is for courts within the circuit). Active or retired U.S. Supreme Court justices can be designated Circuit Justices and sit as judges in the Courts of Appeals or District Courts.

This is done to balance judicial business and schedules, to cross-fertilize the regional courts, and to give District Court judges the opportunity to hear appeals. Also, when a retired (senior) judge has moved away from the region of his or her appointment but is willing to sit in the federal courts where he or she is located, the senior judge may be designated a “visiting” judge on a more-or-less permanent basis.

Also the Sixth Circuit includes Michigan, so the designation of a judge from the Michigan district court to sit there would be quite common. District judges are sometimes assigned to sit on circuits outside their own, and when that happens it tends to be the more distinguished district judges that are sent cross-country.

Just in case someone is not familiar with the system, the U.S. is divided up into 12 regional circuits, in which there is a United States Court of Appeals for the XXXth Circuit (there’s also a specialized Federal Circuit). The judges on the Court of Appeals are called Circuit judges. Each state has one or more districts each of which has a U.S. District Court from which appeals go to the circuit encompassing it (except some appeals go to the Federal Circuit). For instance, New York County, New York (Manhattan) is within the Southern District of New York, which is within the Second Circuit.