In this piece, Professors Tiller and Cross suggest that the federal justice
system could be improved by limiting the practice of randomly assigning ci
rcuit court judges to panels and by acknowledging the partisan component of
judging. Complete random assignment, they argue?, creates political imbala
nce on panels when three judges from the same political orientation are cho
sen. In those situations, judges may feel less constrained in closely follo
wing 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 poli
tical party of each judge's appointing President). The presence of a minori
ty judge on the panel constrains the political behavior of the majority and
enhances the credibility of the judging enterprise. The practical implicat
ions of implementing the proposal are also discussed.