Bench Memos

Judge Easterbrook Responds

Seventh Circuit judge Frank Easterbrook, who served as chief judge of the Seventh Circuit from 2006 to 2013, has kindly sent me responses to the questions I posed yesterday about Seventh Circuit motions panels. Here are his responses:

1. The Seventh Circuit rotates motions duty on a schedule fixed every six months. The Senior Staff Attorney asks judges when they are available and uses that information to compose panels that last one week. For each week there is an assigned motions judge (who handles all one-judge motions that arrive during the week and makes recommendations to the panel about three-judge motions) and two other members. I attach the schedule for the second half of 2013, so you can see how this works. (I can’t give you current or future schedules, because the Seventh Circuit does not announce future panel composition to the public.) Judges usually serve on the motions panel for three consecutive weeks, though only one week as motions judge; each week, one new judge joins the panel and one drops off.

All active judges serve an equal number of weeks on the panel (and as motions judge) during the course of a year. Senior judges participate, or not, at their option. They tell the Senior Staff Attorney what portion of an active judge’s schedule they are willing to undertake.

Motions filed during a panel’s week stay with that panel, even if a request for a response means that the case is not ready for submission until the panel has changed. This ensures that neither counsel nor any judge can manipulate the assignment system. Effectively locking a case to a panel by the date the motion is filed means that the process produces a random distribution of assignments over the year. (Counsel don’t know who is on that week’s panel or who will be on the next week’s, so they can’t time their motions to produce assignment to as particular panel.)

2. When a motion requires the panel to consider the merits to some degree—for example, when the movant requests permission to take an interlocutory review of a class-certification order, or permission to appeal under 28 U.S.C. §1292(b)—the motions panel decides whether it wants to keep the case for decision on the merits too. The principal consideration is whether the panel has gotten deeply enough into the merits that it would be sensible to continue, rather than require three other judges to learn the case from scratch. This isn’t written in any rule or operating procedure, but it has been the court’s practice since I was appointed in 1985.

Normally the the motions judge (who will be the most senior judge on the panel only about a third of the time) makes a recommendation about this to the whole panel, but any member of the panel is free to make a recommendation independently (or to disagree with the motions judge). The panel then decides by consensus. Some judges are more apt than others to prefer keeping a case, but the process is the same for all judges—and all have an equal chance to keep cases for decision on the merits.

3. Although the operating procedures say that the panel will refer the matter to the Chief Judge for assignment, this rarely happens—and no one wants it to be done routinely. As a practical matter, the issue is referred to the Chief Judge only when the panel is internally divided about whether to retain the case for decision on the merits. During my seven years as Chief Judge, that happened only once. I assigned that case to the motions panel for decision on the merits.

(I’ve added in the hyperlink to the schedule that Judge Easterbrook attached. ​Please note that Judge Easterbrooks’s response to my question 2 also answers my question 4.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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