A modest proposal for improving American justice

In this piece, Professors Tiller and Cross suggest that the federal justice system could be improved by limiting the practice of randomly assigning circuit court judges to panels and by acknowledging the partisan component of judging. Complete random assignment, they argue, creates political imbalance on panels when three judges from the same political orientation are chosen. In those situations, judges may feel less constrained in closely following established legal doctrines when doing so conflicts with their policy preferences. Tiller and Cross propose that no more than two members on each panel be selected from the same political party (as determined by the political party of each judge's appointing President). The presence of a minority judge on the panel constrains the political behavior of the majority and enhances the credibility of the judging enterprise. The practical implications of implementing the proposal are also discussed.