A Response to Tiller and Cross

In their Proposal, Professors Tiller and Cross identify what they see as the politicalization of federal appellate panels, based primarily on analysis of the decisions of the United States Court of Appeals for the District of Columbia Circuit. As a solution, they propose assigning judges to federal appellate panels based on the political affiliation of their appointing President, rather than by random assignment. Judge Patricia M. Wald of the District of Columbia Circuit responds both to Tiller and Cross's assumptions and to their proposed solution, questioning the necessity and the efficacy of their solution. As to the alleged partisanship of the D. C. Circuit, Judge Wald's Essays question how often either the opportunity or the exercise of partisanship decisionmaking actually occur. As to Tiller and Cross's proposed solution of appointing judges based on their appointing President's political affiliations, Judge Wald questions the effectiveness as well as the constitutionality of the proposal and notes several incidental negative effects of such a solution. Her Essays conclude that the current party-blind system is far superior to one that labels judges by political party.