Fortieth annual administrative law symposium judicial specialization and the adjudication of immigration cases

Duke Law Journal

Volumn 59, Issue 8, 2010, Pages 1501-1561

  Baum, Lawrence ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 77955146304     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (334)

1. Among immigration practitioners, the term "adjudication" is often used to refer to administrative review of applications and petitions. In this Article, I use the term in its more conventional sense to refer to decisionmaking in a judicial setting, both within the Justice Department (immigration courts and the Board of Immigration Appeals) and in the federal courts.
2. See, e.g., Sydenham B. Alexander III, A Political Response to Crisis in the Immigration Courts, 21 GEO. IMMIGR. L.J. 1, 18-21 (2006) (describing working conditions in the courts that jeopardize the immigration adjudication system).
3. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulettee: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 325-49 (2007) (presenting data illustrating the disparities).
4. "[T]he outcome of a refugee's quest for safety in America should be influenced more by law and less by a spin of the wheel of fate that assigns her case to a particular government official.".
5. See, e.g., Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 375-79 (2006) (expressing concern over former Attorney General Ashcroft's reassignment of judges).
6. John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y.L. SCH. L. REV. 13, 14 (2006).
7. For a discussion of the changes made in BIA procedures in 1999 and 2002 to deal with backlogs of cases and criticisms of the 2002 changes, see John R.B. Palmer, Stephen W. Yale-Loehr & Elizabeth Cronin, Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review, 20 GEO. IMMIGR. L.J. 1, 23-32 (2005).
8. For a more detailed discussion, see infra Part III.C.
9. In this Article, the term "immigration courts" refers specifically to the trial-level bodies in which immigration judges serve.
10. Asylum officers hear applications for asylum that are made outside the context of proceedings to remove individuals from the United States. See infra notes 23-24 and accompanying text.
11. Immigration judges and BIA members act on behalf of the attorney general, who can override their decisions. In practice, the attorney general intervenes only after BIA review of an immigration judge's decision. It was reported in 2006 that the attorney general had reviewed only twenty-five BIA decisions in fifteen years. Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 67 (2006) (statement of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. Department of Justice).
12. Federal district court judges hear cases arising from criminal prosecutions of individuals for violation of immigration laws. In 2008, immigration offenses accounted for 34 percent of all criminal cases commenced in the district courts, and they constituted a majority of criminal cases in some districts. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2009 ANNUAL REPORT OF THE DIRECTOR 227-32 (2010), available at http://www.uscourts.gov/judbus2009/JudicialBusinespdfversion.pdf.
13. The Supreme Court hears a fairly small number of cases that directly involve interpretation of the immigration laws-by one count, about one case per term on average during the 1953-2008 terms-although many other cases involve or affect immigrants. The count is based on analysis of the issue codings in The Supreme Court Database, compiled primarily by Harold Spaeth. See The Supreme Court Database, http://scdb.wustl.edu/ (last visited Mar. 28, 2010).
14. For a summary of the history that led to the current status and role of immigration judges (and of the BIA) in the adjudication of cases, see Dory Mitros Durham, The Once and Future Judge: The Rise and Fall (and Rise?) of Independence in U.S. Immigration Courts, 81 NOTRE DAME L. REV. 655, 661-80 (2006).
15. OFFICE OF PROF'L RESPONSIBILITY & OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL 71-72, 114-15 (2008), available at http://www.usdoj.gov/oig/special/s0807/final.pdf.
16. Michele Benedetto, Crisis on the Immigration Bench: An Ethical Perspective, 73 BROOK. L. REV. 467, 473 (2008).
17. This figure was calculated from lists of judges at the EOIR website. EOIR, U.S. Dep't of Justice, EOIR Immigration Court Listing, http://www.justice.gov/eoir/sibpages/ICadr.htm (last visited Mar. 28, 2010).
18. See EOIR, U.S. DEP'T OF JUSTICE, FY 2009 STATISTICAL YEAR BOOK, at C3 tbl.3, C4 tbl.4 (2010) (showing the number of proceedings of each type received and completed by immigration courts in fiscal year 2009). For a description of the steps involved in removal proceedings.
19. see U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-06-771, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW: CASELOAD PERFORMANCE REPORTING NEEDS IMPROVEMENT 10 (2006).
20. 8 C.F.R. § 1003.1(a)(1) (2009).
21. Showing the number of cases completed by the BIA that came from immigration courts). The government makes a small percentage of the appeals to the BIA, about 6 percent in fiscal year 2005. Immigration Litigation Reduction, (prepared response of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. Department of Justice, to questions submitted by Sen. Leahy, Member, S. Comm. on the Judiciary) (providing a chart of BIA outcomes.
22. Formally, the courts of appeals review orders to remove individuals from the U.S., rather than BIA decisions. See 8 U.S.C. § 1252(a)(1) (2006) (providing for judicial review of removal orders). Of the 57,740 cases commenced in the courts of appeals across all fields in fiscal year 2009, 7,518 were petitions for review of decisions by the BIA and 1,690 were appeals from the district courts in criminal cases involving immigration offenses. ADMIN. OFFICE OF THE U.S. COURTS.
23. 8 U.S.C. § 1252(e)(4)(B).
24. Establishing refugee qualifications.
25. See TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, THE ASYLUM PROCESS (2006), http://trac.syr.edu/immigration/reports/159/ (explaining affirmative and defensive asylum applications).
26. 8 C.F.R. § 208.14©(1) (2009).
27. For a summary of the procedures, see Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 418 (2007).
28. Finding that 39,279 of 327,735 cases received in 2009 involved asylum issues, compared with 57,139 of 279,436 in 2007.
29. The chief judge of the Court of Appeals for the Second Circuit reported in 2006 that more than 90 percent of the petitions for review of BIA decisions in his court raised asylum issues. Immigration Litigation Reduction, (testimony of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit).
30. see also Lenni B. Benson, You Can't Get There from Here: Managing Judicial Review of Immigration Cases, 2007 U. CHI. LEGAL F. 405, 425 (reporting similar estimates for the Second Circuit).
31. For a discussion of congressional efforts to limit review in 1996, see generally Donald S. Dobkin, Court Stripping and Limitations on Judicial Review of Immigration Cases, 28 JUST. SYS. J. 104 (2007).
32. In this Article, I do not directly address the debate among legal scholars and political scientists about the relative importance of legal and policy considerations in judicial decisionmaking. For a discussion of the differing positions, see LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR 5-9 (2006). I think that these two types of considerations are intertwined in judges' choices, in that judges typically seek to make what they consider good law, but their judgments often are influenced heavily by their policy preferences. For further elaboration, see infra note 30. However, this Article's conclusions about judicial specialization and its relationship with other attributes of adjudication do not rest on a particular position on the roles of legal and policy considerations in judicial decisions.
33. E.g., Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1058-60 (1975).
34. Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 805-07 (1982).
35. Ruggero J. Aldisert, Philosophy, Jurisprudence, and Jurisprudential Temperament of Federal Judges, 20 IND. L. REV. 453, 462, 466 (1987) (discussing the federal courts of appeals).
36. Harry T. Edwards, The Judicial Function and the Elusive Goal of Principled Decisionmaking, 1991 WISC. L. REV. 837, 856-58 (same).
37. John T. Wold, Going Through the Motions: The Monotony of Appellate Court Decisionmaking, 62 JUDICATURE 58, 62-63 (1978) (discussing the California Courts of Appeal).
38. Commentators tend to share judges' perceptions of differences between appellate courts with mostly mandatory jurisdiction and those with mostly discretionary jurisdiction. It is primarily because of this shared perception that some scholars conclude that legal considerations play little or no role in Supreme Court decisionmaking.
39. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 44-85 (2002) (describing the futility of using legal considerations to fully explain decisionmaking).
40. Richard A. Posner, The Supreme Court, 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. 31, 35-60 (2005).
41. See C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS 136 (1996) ("[T]he legal paradigm includes a set of implicit assumptions about the relationship between trial and appellate judges that is equally unable to accommodate evidence of political jurisprudence.").
42. Elaborating on the differences between trial and appellate courts.
43. More precisely, the hardship is "to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(D) (2006).
44. For an illustration of the imprecision of this standard when subjected to close analysis, see In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 58-63 (B.I.A. 2001).
45. David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV. 1247, 1280-82 (1990).
46. 8 U.S.C. § 1158(b)(1)(A).
47. See, e.g., Ramirez-Felipe v. Mukasey, 292 F. App'x 482, 483-84 (6th Cir. 2008).
48. Zulbeari v. INS, 963 F.2d 999, 1000-01 (7th Cir. 1992).
49. In fiscal year 2009, 39 percent of individuals with cases before immigration judges were represented by attorneys. EOIR, On the lack of legal representation for most individuals and the difficulties it creates, see Nina Bernstein, In City of Lawyers, Many Immigrants Fight Deportation Alone, N.Y. TIMES, Mar. 13, 2009, at A21.
50. Of course, individuals represented by attorneys do not necessarily receive high-quality services. See Aris v. Mukasey, 517 F.3d 595, 598-99, 601 (2d Cir. 2008) (describing how an attorney "failed spectacularly" in an immigration proceeding).
51. Richard L. Abel, Practicing Immigration Law in Filene's Basement, 84 N.C.L. REV. 1449, 1452-77 (2006) (describing an egregious example of neglect in the representation of Chinese immigrants).
52. John T. Noonan, Jr., Immigration Law 2006, 55 CATH. U. L. REV. 905, 907-12 (2006) (referring to an attorney as a "scarecrow").
53. Both the high proportion of unrepresented individuals and the deficiencies of some representation are discussed in Robert A. Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 GEO. J. LEGAL ETHICS 3, 5-10 (2008).
54. The legal rules for adequacy of counsel in immigration proceedings have shifted in recent years. See In re Compean, 25 I. & N. Dec. 1 (Att'y Gen. 2009) (vacating several prior decisions instituting a new standard).
55. John Schwartz, A Bush Rule Bolstering Deportations Is Withdrawn, N.Y. TIMES, June 4, 2009, at A13 (describing a change from a Bush administration ruling).
56. Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication, 60 STAN. L. REV. 475, 489 (2007) (referring to asylum cases).
57. In proceedings before an immigration judge, however, there is a third option of allowing an immigrant to leave the United States voluntarily. 8 U.S.C. § 1229c(b)(1) (2006).
58. If a judge sentences a defendant to prison, the judge can determine the length of the sentence within statutory constraints. If a judge does not impose a prison sentence, the judge can determine whether to impose probation, the length of the probation term, and the conditions of probation. See U.S. SENTENCING GUIDELINES MANUAL §§ 5A-5C1.2 (2009). The Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), has (at least) weakened the force of the federal sentencing guidelines, but the options that the guidelines lay out are typical of those available to judges.
59. See AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS §§ 2.05-.12 (2002).
60. See, e.g., Leon Dash, Sentences Tied to "Gut Reaction," WASH. POST, June 26, 1975, at D5 (describing the highly disparate sentences given to similar defendants on the basis of a judge's "gut reaction" to them).
61. See Ziva Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480, 480 (1990) (discussing how motivation affects reasoning through "reliance on a biased set of cognitive processes").
62. See generally Roy F. Baumeister & Leonard S. Newman, Self-Regulation of Cognitive Inference and Decision Processes, 20 PERSONALITY & SOC. PSYCHOL. BULL. 3 (1994) (discussing "motivated cognition in the context of self-regulation theory").
63. Tom Pyszczynski & Jeff Greenberg, Toward an Integration of Cognitive and Motivational Perspectives on Social Inference: A Biased Hypothesis-Testing Model, 20 ADVANCES EXPERIMENTAL SOC. PSYCHOL. 297 (1987) (analyzing cognitive and motivational bases for biased cognitions).
64. Carolin Showers & Nancy Cantor, Social Cognition: A Look at Motivated Strategies, 36 ANN. REV. PSYCHOL. 275 (1985) (analyzing the role of motivation in social cognition).
65. For a discussion of the application of the motivated reasoning concept to judicial decisionmaking, see EILEEN BRAMAN, LAW, POLITICS, AND PERCEPTION: HOW POLICY PREFERENCES INFLUENCE LEGAL REASONING 13-79 (2009).
66. The evidence on racial discrimination in sentencing is complex and disputed. See Steven Klepper, Daniel Nagin & Luke-Jon Tierney, Discrimination in the Criminal Justice System-A Critical Appraisal of the Literature, in 2 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM 55, 55-128 (Alfred Blumstein et al. eds., 1983) (critiquing studies of discrimination in case disposition).
67. Martha A. Myers & Susette M. Talarico, The Social Contexts of Racial Discrimination in Sentencing, 33 SOC. PROBS. 236, 236 (1986) (analyzing "whether race differences in treatment vary as a function of who is being sentenced and where sentencing occurs").
68. MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 12-25 (1972).
69. see also JAMES S. KUNEN, "HOW CAN YOU DEFEND THOSE PEOPLE?": THE MAKING OF A CRIMINAL LAWYER 37 (1983) (reporting a judge's description of the impact of time of day and day of week on sentencing).
70. See generally Shari Seidman Diamond & Hans Zeisel, Sentencing Councils: A Study of Sentencing Disparity and Its Reduction, 43 U. CHI. L. REV. 109 (1975) (studying sentencing disparity and discussing early attempts to study the phenomenon).
71. See Shawn D. Bushway & Anne Morrison Piehl, Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing, 35 LAW & SOC'Y REV. 733, 748-62 (2001).
72. Darrell Steffensmeier, Jeffery Ulmer & John Kramer, The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male, 36 CRIMINOLOGY 763, 785 n.8 (1998).
73. Jeffery T. Ulmer & John H. Kramer, Court Communities Under Sentencing Guidelines: Dilemmas of Formal Rationality and Sentencing Disparity, 34 CRIMINOLOGY 383, 389 (1996).
74. See Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW & CONTEMP. PROBS. 226, 249-62 (1975).
75. See U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-08-940, SIGNIFICANT VARIATION EXISTED IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES 22-29 (2008).
76. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, LATEST DATA FROM IMMIGRATION COURTS SHOW DECLINE IN ASYLUM DISPARITY (2009), http://trac.syr.edu/immigration/reports/209/.
77. For a discussion of circumscribed immigration review in the courts of appeals.
78. 8 C.F.R. § 1003.1(d)(3)(i) (2009).
79. 8 U.S.C. § 1252(b)(4)(A) (2006).
80. See John R.B. Palmer, The Second Circuit's "New Asylum Seekers": Responses to an Expanded Immigration Docket, 55 CATH. U. L. REV. 965, 977-97, 982-88 (2006).
81. Of course, judges themselves help determine how much time is available. For a discussion of the judicial preference for leisure, see RICHARD A. POSNER, OVERCOMING LAW 123-26 (1995).
82. Frank H. Easterbrook, What's So Special About Judges?, 61 U. COLO. L. REV. 773, 778 (1990).
83. See Stuart L. Lustig et al., Inside the Judges' Chambers: Narrative Responses from the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L.J. 57, 64-65 (2008) (quoting immigration judges on pressures to complete cases).
84. U.S. GOV'T ACCOUNTABILITY OFFICE
85. Noting a 1.1 percent caseload decline between 2005 and 2009.
86. Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1652 (2010).
87. According to one immigration judge, "[t]hese are death penalty cases being handled with the resources of traffic court." APPLESEED, ASSEMBLY LINE INJUSTICE: BLUEPRINT TO REFORM AMERICA'S IMMIGRATION COURTS 1 (2009), available at http://www.appleseeds.net/Portals/0/Documents/Publications/Assembly%20Line%20Injustice.pdf.
88. see also Juan P. Osuna, Chairman, BIA, Panel Discussion at the Brookings Institution: Immigration and the Courts 12 (Feb. 20, 2009) (transcript available at http://www.brookings.edu/~/media/Files/events/2009/0220_immigration/20080220_immigration.pdf) (noting that a former chief immigration judge called the immigration court system "a traffic court volume with Supreme Court consequences").
89. Solomon Moore & Ann M. Simmons, Immigrant Pleas Crushing Federal Appellate Courts, L.A. TIMES, May 2, 2005, at A1.
90. Statement of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit).
91. Noting that BIA reform precludes the BIA from "cleaning up" the improper decisions of immigration judges. The proportion of summary BIA decisions was later reduced.
92. Statement of John M. Walker, Jr.). Chief Judge Walker also said at the hearing that "[w]e don't have confidence, frankly, that the BIA has really looked at the case."
93. DORSEY & WHITNEY LLP, STUDY CONDUCTED FOR THE AMERICAN BAR ASSOCIATION COMMISSION ON IMMIGRATION POLICY, PRACTICE AND PRO BONO RE: BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT 12-16 (2003), available at http://www.dorsey.com/files/upload/DorseyStudyABA_8mgPDF.pdf.
94. Board of Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135. 56,135 (Oct. 18, 1999) (codified as amended at 8 C.F.R. pt. 1003).
95. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003).
96. Board of Immigration Appeals: Streamlining, 64 Fed. Reg. at 56,141-42.
97. In each of the fiscal years from 2003 through 2008, the percentage of BIA cases decided by single members was between 93 percent and 94 percent.
98. The expansion was enormous, but it has since been reversed. Of the BIA decisions in fiscal year 2001, 6 percent were affirmances without opinion. In fiscal years 2002 through 2004, about one-third were affirmances without opinion. In fiscal year 2009, the proportion was 5 percent. Attorney General Alberto Gonzales indicated in 2007 that the BIA would be "drastically decreasing its reliance on summary one-line decisions." Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007) (statement of Alberto Gonzales, Att'y Gen. of the United States). As yet, there appear to be no analyses indicating whether the decline in the use of affirmances without opinion has been accompanied by an increase in decisions favorable to individuals.
99. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,902-03.
100. STEPHEN H. LEGOMSKY & CRISTINA M. RODRÍGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 758 (5th ed. 2009) ("In 2002, just before the BIA reforms, only 5% of the BIA decisions were being appealed to the federal courts. By November 2004 that figure was 25% and by 2006 it had risen to 30%." (citation omitted)).
101. "Observers generally agree that the surge is closely linked to recent procedural changes at the BIA, which substantially increased the volume of decisions reached by that tribunal, and led litigants to appeal those decisions at a higher rate.".
102. "More people than ever before are petitioning the courts to review decisions of the Board of Immigration Appeals (BIA), and these petitions now account for a substantial proportion of the caseload in the courts of appeals....".
103. ADMIN. OFFICE OF THE U.S. COURTS.
104. In fiscal year 2009, the proportions were considerably lower-28 percent in the Second Circuit and 27 percent in the Ninth Circuit. It is uncertain whether the decline in 2009 and the overall decline in petitions to review BIA decisions represent the beginning of a longer-term trend. If so, the perceived need to relieve the courts of appeals of their immigration caseloads may weaken.
105. Comm. on Fed. Courts, The Surge of Immigration Appeals and Its Impact on the Second Circuit Court of Appeals, 60 REC. ASS'N B. CITY N.Y. 243, 244 (2005).
106. See Dan Simon, A Psychological Model of Judicial Decision Making, 30 RUTGERS L.J. 1, 82 (1998) ("[G]iven the work load of judges, they often make their decisions before developing the models to their fullest.").
107. One example is the central staff that does much of the work of reaching decisions in a subset of cases in some appellate courts. See JOY A. CHAPPER & ROGER A. HANSON, NAT'L CTR. FOR STATE COURTS, INTERMEDIATE APPELLATE COURTS: IMPROVING CASE PROCESSING 15-22 (1990).
108. For background on the use of heuristics in decisionmaking, see generally JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982).
109. RICHARD NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 17-42 (1980).
110. Thomas Y. Davies, Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal, 1982 AM. B. FOUND. RES. J. 543, 602-03.
111. On the meaning of directional and accuracy goals.
112. Marcia Coyle, Burnout, Stress Plague Immigration Judges, NAT'L L.J., July 13, 2009, at 4.
113. See, e.g., Ba v. Gonzales, 228 F. App'x 7, 11 (2d Cir. 2007).
114. Nina Bernstein, Judge Who Chastised Weeping Asylum Seeker Is Taken off Case, N.Y. TIMES, Sept. 20, 2007, at B1.
115. 8 C.F.R. § 1003.1(e)(4) (2009).
116. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,885-87 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003).
117. For a depiction of the increased use of summary decisions and the increased proportion of denied appeals, see DORSEY & WHITNEY LLP,. For a discussion of affirmances without opinion,. It is uncertain whether the decline in the use of summary decisions since 2004 has been accompanied by a reduced proportion of denied appeals.
118. Chad Westerland, The Consequences of Immigration Reform for the U.S. Courts of Appeals 38 (Aug. 3, 2009) (unpublished manuscript), available at http://ssrn.com/abstract=1443381.
119. The overall remand rate for all circuits was 15.4 percent. In 2006, a DOJ official reported (for an unspecified period) that individuals won in 14 percent of the decisions by courts of appeals; if procedural decisions were taken into account, the success rate was less than 10 percent. Immigration Litigation Reduction, (testimony of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. Department of Justice).
120. Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005).
121. Abdon M. Pallasch, Political Refugees Better Off Right Here, CHI. SUN-TIMES, Apr. 27, 2009, at 14 (quoting Richard Posner, J., U.S. Court of Appeals for the Seventh Circuit).
122. Total numbers of appeals for 2004-05 were obtained from the OFFICE OF PUBLIC AFFAIRS, ADMIN. OFFICE OF THE U.S. COURTS, 2005 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS 101 tbl.B (2006), available at http://www.uscourts.gov/judbus2005/appendices/b0.pdf.
123. Comm. on Fed. Courts.
124. Testimony of Carlos T. Bea, J., U.S. Court of Appeals for the Ninth Circuit.
125. Letter from Sidney R. Thomas, J., U.S. Court of Appeals for the Ninth Circuit.
126. See, e.g., Stephen B. Burbank, Barry Friedman & Deborah Goldberg, Introduction to JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 3 (Stephen B. Burbank & Barry Friedman eds., 2002). Independence and accountability usually refer to the content of judges' decisions, and I follow that usage in this and subsequent discussions of control over judges. This kind of control should be distinguished from control over the quantity of decisions-that is, efforts to increase production by judges to deal with case backlogs. Efforts by superiors to increase production in the immigration courts and the BIA were discussed previously.
127. See, e.g., BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
128. CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA'S JUDICIAL SYSTEM (2006).
129. MARK C. MILLER, THE VIEW OF THE COURTS FROM THE HILL: INTERACTIONS BETWEEN CONGRESS AND THE FEDERAL JUDICIARY (2009).
130. Perhaps the most controversial court of appeals decision in recent years was the Ninth Circuit decision holding that inclusion of "under God" in the Pledge of Allegiance recited at a public school was unconstitutional. Newdow v. U.S. Congress, 328 F.3d 466, 488 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). The level of interest in that decision highlighted the infrequency with which court of appeals decisions receive much attention.
131. See, e.g., Alexander K. Hooper, Recent Development, Jurisdiction-Stripping: The Pledge Protection Act of 2004, 42 HARV. J. ON LEGIS. 511, 511 & n.3 (2005) (discussing public and congressional reaction to the Ninth Circuit decision and the introduction in the House of Representatives of a jurisdiction-stripping bill intended to "protect" the Pledge of Allegiance).
132. See Donald R. Songer, Jeffrey A. Segal & Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673, 673-74 (1994).
133. The statutes that limited jurisdiction were the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified in scattered sections of 8 U.S.C. and 18 U.S.C.), and the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (codified in scattered sections of 8 U.S.C.).
134. Provisions of the 1996 statutes "bar judicial review of entire classes of removal orders, preclude judicial review of most discretionary decisions, specifically prohibit the use of particular judicial remedies and forms of action, and otherwise inhibit judicial review.".
135. See, e.g., James E. Moliterno, The Administrative Judiciary's Independence Myth, 41 WAKE FOREST L. REV. 1191, 1209-34 (2006).
136. For background on this review and its exercise, see generally Christina L. Boyd & Amanda Driscoll, Empirical Insights into Agency Adjudications: Agency Head Reversals of Administrative Law Judges (Aug. 18, 2008) (unpublished manuscript, presented at the 2008 Annual Meeting of the American Political Science Association, on file with the Duke Law Journal).
137. Cole Taratoot, Accountability and Independence: Administrative Law Judges and NLRB Rulings (July 1, 2009) (unpublished manuscript), available at http://ssrn.com/abstract= 1428518.
138. See DONNA PRICE COFER, JUDGES, BUREAUCRATS, AND THE QUESTION OF INDEPENDENCE: A STUDY OF THE SOCIAL SECURITY ADMINISTRATION HEARING PROCESS 75-156 (1985).
139. Paul R. Verkuil, Reflections upon the Federal Administrative Judiciary, 39 UCLA L. REV. 1341, 1354-55 (1992).
140. For background on executive-branch adjudicators who are not ALJs, see generally John H. Frye III, Survey of Non-ALJ Hearing Programs in the Federal Government, 44 ADMIN. L. REV. 261 (1992).
141. EOIR, U.S. Dep't of Justice, EOIR Background Information, http://www.justice.gov/eoir/background.htm (last visited Mar. 28, 2010).
142. U.S. Dep't of Justice, Office of Immigration Litigation: District Court Section, http://www.justice.gov/civil/oil/District_Court_Section.htm (last visited Mar. 28, 2010).
143. see also Margaret H. Taylor, Behind the Scenes of St. Cyr and Zadvydas: Making Policy in the Midst of Litigation, 16 GEO. IMMIGR. L.J. 271, 293 & n.122 (2002) (noting that the DOJ's Office of Immigration Litigation handles immigration cases).
144. Provisions of a 2007 Code of Conduct for immigration judges and members of the BIA exempted communications with DOJ employees from the prohibition on ex parte communications while a case was pending. Codes of Conduct for the Immigration Judges and Board Members, 72 Fed. Reg. 35,510, 35,511-12 (June 28, 2007). In the view of one commentator, each of these provisions "further erodes... decisional independence.".
145. Another change adopted under Attorney General Gonzales allowed government attorneys, but not those representing the other side, to file complaints about decisions by immigration judges and the BIA. Executive Office for Immigration Review: Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H. Comm. on the Judiciary, 110th Cong. 40 (2009) (testimony of Stephen H. Legomsky, Professor, Washington University School of Law).
146. See Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified as amended at 8 C.F.R. pt. 1003) (establishing the BIA).
147. Noting that the BIA was created by the attorney general rather than by statute.
148. Describing the structural and procedural changes in the BIA instituted by Attorney General Ashcroft, and their influence on BIA decisions.
149. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003).
150. Peter J. Levinson, The Facade of Quasi-Judicial Independence in Immigration Appellate Adjudications, 9 BENDER'S IMMIGR. BULL. 1154, 1155 (2004).
151. Analyzing BIA members' votes in closely divided en banc decisions and concluding that those who tended to favor noncitizens were more likely than their colleagues to be reassigned.
152. Assessing these two models' power to explain Supreme Court behavior.
153. For arguments that the Justices respond to Congress in this way in statutory cases, see generally Mario Bergara, Barak Richman & Pablo T. Spiller, Modeling Supreme Court Strategic Decision Making: The Congressional Constraint, 28 LEGIS. STUD. Q. 247 (2003).
154. William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613 (1991).
155. For a skeptical view of this argument, see Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Law and Courts, 91 AM. POL. SCI. REV. 28 (1997).
156. David E. Klein & Robert J. Hume, Fear of Reversal as an Explanation of Lower Court Compliance, 37 LAW & SOC'Y REV. 579, 580 (2003).
157. In other words, even if judges would prefer that Congress not limit their jurisdiction in immigration cases or change the law to limit immigrants' legal rights, they face a collective action problem: because a single judge's choices seldom have much effect on the likelihood that Congress will take negative action, judges have little incentive to take positions that depart from their reading of the law or their policy preferences to avoid displeasing Congress. For background on collective action problems, see generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1971).
158. In light of the difficulty of many immigration cases and the growth in the volume of these cases despite congressional action, it is not certain that all judges are unhappy about limitations on their jurisdiction in the immigration field.
159. Showing the percentage of asylum cases remanded by each circuit in 2004 and 2005.
160. See, e.g., Scott Andrew Hendrickson, Examining Judicial Independence: Article I v. Article III Courts 94-192 (Aug. 2006) (unpublished Ph.D. dissertation, Washington University in St. Louis) (on file with Olin Library, Washington University in St. Louis) (studying tax and international trade litigation in federal courts).
161. See Sanford C. Gordon & Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q.J. POL. SCI. 107, 108 (2007) ("[J]udges in partisan competitive systems sentence significantly more punitively than those in retention systems.").
162. Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117, 1122-23 (1987) (finding that electoral pressures made a Louisiana Supreme Court justice less likely to cast unpopular votes in highly visible death penalty cases).
163. Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427, 442 (1992) ("District-based elections, close margins of victory, approaching the end of a term, conditioning from previous representational service, and experience in seeking reelection influence liberal justices to join conservative majorities in death penalty cases in Texas, North Carolina, Louisiana, and Kentucky.").
164. Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind when It Runs for Office?, 48 AM. J. POL. SCI. 247, 261 (2004) (finding that judges become more punitive as elections approach).
165. Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 DUKE L.J. 623, 660-62, 669-72 (2009) (finding that both campaign contributions and the political preferences of the electorate influence judges' votes).
166. Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 DUKE L.J. 1589, 1617 (2009).
167. DORSEY & WHITNEY LLP.
168. At least in asylum cases, the proportions of BIA decisions favorable to individuals remained at the new, lower level through fiscal year 2005.
169. Showing asylum grant and remand rates for fiscal years 1998 through 2005.
170. Describing factors that pressure immigration judges to rule in favor of the government.
171. Marcia Coyle, Immigration Judges Seek Article I Status, NAT'L L.J., Aug. 10, 2009, at 13 (describing pressures that have led immigration judges to seek Article I status to increase their independence).
172. Quoting survey responses from immigration judges complaining of the pressure to dispose of cases quickly.
173. Quoting immigration judges' expressions of frustration about criticism from the courts of appeals.
174. In 2008, Chief Judge Dennis Jacobs of the Second Circuit reported his understanding that a court of appeals decision favorable to an individual "can sometimes lead to the opening of a disciplinary inquiry against the immigration judge who issued the ruling." Executive Office for Immigration Review, (letter from Dennis Jacobs, C.J., United States Court of Appeals for the Second Circuit). If this is true, as Chief Judge Jacobs pointed out, then immigration judges might feel considerable pressure to rule in favor of individuals.
175. EOIR, U.S. DEP'T OF JUSTICE, MEASURES TO IMPROVE THE IMMIGRATION COURTS AND THE BOARD OF IMMIGRATION APPEALS: DIRECTIVE #8: ANALYSIS AND RECOMMENDATIONS REGARDING DISPARITIES IN ASYLUM GRANT RATES 1 (2006), available at http://trac.syr.edu/immigration/reports/210/include/08-EOIR_asylum_disparity_report.pdf.
176. See Jeffrey A. Segal et al., Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 J. POL. 812, 817 tbl.3 (1995) (showing a correlation between Justices' ideology, as determined by editorials published before their confirmation, and their votes).
177. See, e.g., Robert A. Carp, Kenneth L. Manning & Ronald Stidham, Right On: The Decision-Making Behavior of George W. Bush's Judicial Appointees, 92 JUDICATURE 312, 316-18 (2009) (showing that district judges appointed by Democratic presidents cast higher proportions of liberal votes than Republican appointees).
178. See LAURA LANGER, JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY 123 (2002) (suggesting that within some limits, state supreme court justices are largely free to follow their own ideological preferences). For further statistical analysis.
179. According to one report, "55 percent of Immigration Judges worked in positions that were adversarial to immigrants (the vast majority of whom were Trial Attorneys [in Homeland Security])." APPLESEED,. This finding led to the conclusion that trial attorneys in the DHS "serve[] as the farm team for the Immigration Judge corps." Id.
180. Explaining that past work experience with the Immigration and Naturalization Service (INS) or the DHS is correlated with fewer decisions granting asylum.
181. See EOIR, U.S. DEP'T OF JUSTICE, FACT SHEET: BOARD OF IMMIGRATION APPEALS 1-5 (2009), available at http://www.justice.gov/eoir/fs/biabios.pdf (describing the backgrounds of the members of the BIA).
182. describing the prior experience of BIA members.
183. Only two of the fourteen BIA members indicated that they had experience in the private immigration bar. It is possible that a few other members had such experience that their biographical information did not list.
184. describing the BIA members' DOJ experience.
185. See generally OFFICE OF PROF'L RESPONSIBILITY & OFFICE OF THE INSPECTOR GEN., (describing the hiring of immigration judges and BIA members under the Bush administration and examining allegations of politically motivated hiring).
186. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 248 (1996).
187. See STEPHEN H. LEGOMSKY, SPECIALIZED JUSTICE: COURTS, ADMINISTRATIVE TRIBUNALS, AND A CROSS-NATIONAL THEORY OF SPECIALIZATION 7-20 (1990).
188. ISAAC UNAH, THE COURTS OF INTERNATIONAL TRADE: JUDICIAL SPECIALIZATION, EXPERTISE, AND BUREAUCRATIC POLICY MAKING 171-79 (1998).
189. Harold H. Bruff, Specialized Courts in Administrative Law, 43 ADMIN. L. REV. 329, 331 (1991).
190. David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 COLUM. L. REV. 1, 62-74 (1975).
191. Sarang Vijay Damle, Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court, 91 VA. L. REV. 1267, 1268-70 (2005).
192. Rochelle Cooper Dreyfuss, Specialized Adjudication, 1990 B.Y.U.L. REV. 377, 377-82.
193. Ellen R. Jordan, Specialized Courts: A Choice?, 76 NW. U. L. REV. 745, 784-85 (1981).
194. Nathaniel L. Nathanson, The Administrative Court Proposal, 57 VA. L. REV. 996, 998-1001 (1971).
195. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1143-47 (1990).
196. Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67, 88-109 (1995).
197. For more information on executive branch judges and adjudication in the federal government.
198. Daniel J. Gifford, Federal Administrative Law Judges: The Relevance of Past Choices to Future Directions, 49 ADMIN. L. REV. 1, 52-59 (1997).
199. This is not to say that there are no elements of specialization in these courts. For instance, judges on the courts of appeals have a degree of specialization in opinion writing, and in two circuits, immigration cases constitute a large minority of the agenda. See infra Part III.B.
200. See Thomas E. Ewing, Oregon's Hearing Officer Panel, 23 J. NAT'L ASS'N ADMIN. L. JUDGES 57, 80 (2003) (discussing the utility of cross-training for ALJs in Oregon's central panel system).
201. Allen Hoberg, Administrative Hearings: State Central Panels in the 1990s, 46 ADMIN. L. REV. 75, 78-81 (1994) (examining the jurisdiction and structure of central administrative panels in various states).
202. Marvin F. Kittrell, ALJs in South Carolina, S.C. LAW., May-June 1996, at 42, 42 (discussing South Carolina's central panel system.
203. Ann Wise, Louisiana's Division of Administrative Law: An Independent Administrative Hearings Tribunal, 68 LA. L. REV. 1169, 1191 (2008) (discussing Louisiana's central panel judges).
204. Jeffrey S. Lubbers, A Unified Corps of ALJs: A Proposal to Test the Idea at the Federal Level, 65 JUDICATURE 266, 267-68 (1981).
205. In addition to the federal courts discussed in the text, many specialized courts exist in the states. For a list of state courts that are considered to be specialized and that are listed as separate bodies on organization charts, see COURT STATISTICS PROJECT, NAT'L CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS, 2007, at 16-67 (2008), available at http://www.ncsconline.org/D_Research/csp/2007_files/State%20Court%20Caseload%20Statistic s%202007.pdf.
206. There is also a great deal of unofficial specialization in state trial courts, based on temporary or permanent assignments of judges to hear specific categories of cases. MICHAEL WILLRICH, CITY OF COURTS: SOCIALIZING JUSTICE IN PROGRESSIVE ERA CHICAGO 119-240 (2003).
207. The overall extent of specialization in the judiciary is difficult to characterize, not only because so much of the state-level specialization is unofficial but also because specialization has multiple dimensions and forms. For a discussion of that variation in specialization, see Lawrence Baum, Probing the Effects of Judicial Specialization, 58 DUKE L.J. 1667, 1671-75 (2009).
208. See Fed. Judicial Ctr., Courts of the Federal Judiciary, http://www.fjc.gov/history/courts.html (last visited Mar. 28, 2010) (discussing several of the current specialized courts, along with some specialized courts of the past). For a broad survey of current and past specialized federal courts, see Lawrence Baum, Specializing the Federal Courts: Neutral Reforms or Efforts to Shape Judicial Policy?, 74 JUDICATURE 217, 220-22 (1991).
209. See Michael Asimow, The Administrative Judiciary: ALJ's in Historical Perspective, 20 J. NAT'L ASS'N ADMIN. L. JUDGES 157, 161-64 (2000) (discussing the historical development of ALJs and agency integration).
210. See Edward K. Cheng, The Myth of the Generalist Judge, 61 STAN. L. REV. 519, 521 n.2 (2008) (providing several judges' explanations of the benefits of having generalist judges).
211. Letters from Paul R. Michel, C.J., U.S. Court of Appeals for the Federal Circuit. In subsequent references, this court will be referred to simply as the Federal Circuit.
212. Through 1900, the Court of Claims was the only permanent specialized federal court. See Baum,. The number of permanent specialized courts grew over the twentieth century, gradually increasing the proportion of federal jurisdiction that was allocated to specialized bodies. (tracing the increase in congressional decisions adding jurisdiction to specialized federal courts).
213. The term "field" has a degree of ambiguity, in that legal fields might be defined in different ways. For the most part, that ambiguity can be ignored in this Article, because it is reasonable to treat immigration as a distinct field.
214. This description is framed in terms of judges rather than courts because it is primarily the individual judge whose degree of specialization is consequential. If a court has broad jurisdiction but a judge on that court hears only a narrow range of cases, that judge should be treated as a specialist. The distinction between judges and courts is most important at the state trial level, where judges on courts that have broad jurisdiction often are assigned specific types of cases, either temporarily or permanently. For instance, a 1977 survey of judges in general jurisdiction courts found that 12 percent of the judges on those courts were hearing only criminal cases. JOHN PAUL RYAN ET AL., AMERICAN TRIAL JUDGES: THEIR WORK STYLES AND PERFORMANCE 23 (1980). Trial courts in large cities are typically divided into specialized divisions to which judges are assigned for some period of time. See, e.g., Circuit Court of Cook County, State of Ill., Organizational Chart, http://www.cookcountycourt.org/about/flowchart.html (last visited Mar. 28, 2010) (mapping Chicago's specialized divisions).
215. Steven L. Schooner, The Future: Scrutinizing the Empirical Case for the Court of Federal Claims, 71 GEO. WASH. L. REV. 714, 719-36 (2003) (discussing the jurisdiction of the Court of Federal Claims).
216. U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT, APPEALS FILED AND ADJUDICATED, BY CATEGORY, FY 2009 (2009), http://www.cafc.uscourts.gov/pdf/TableAppealsFiledTerminated09.pdf (showing the distribution of Federal Circuit cases).
217. See 38 U.S.C. § 7252(a) (2006) (describing the jurisdiction of the Court of Appeals for Veterans Claims).
218. For example, Stephen Legomsky argues that courts specializing in a single field are undesirable but those with multiple specialties can provide important benefits.
219. If legal fields could be defined with precision, the degree of specialization for any single judge could be ascertained with a measure such as the Herfindahl-Hirschmann Index, a standard measure of concentration among firms in an industry, see Amos Golan, George Judge & Jeffrey M. Perloff, Estimating the Size Distribution of Firms Using Government Summary Statistics, 44 J. INDUS. ECON. 69, 70-71 (1996) (describing the Herfindahl-Hirschmann Index).
220. This effect is easy to exaggerate; so long as there are multiple decisional units, considerable variation in standards for decision may exist. Thus, concentrating cases in a single court is less likely to produce uniformity if cases are decided by single-judge or three-judge units within the court.
221. An example is the patent jurisprudence of the Federal Circuit, which decides the great majority of cases in three-judge panels. Judges on the Federal Circuit have adopted different approaches to the construction of claims in patents, resulting in divergent standards in the court's decisions. See Phillips v. AWH Corp., 415 F.3d 1303, 1330-35 (Fed. Cir. 2005) (Mayer, J., dissenting) (criticizing the lack of a standard method for deciding patent claims).
222. JAMES BESSEN & MICHAEL J. MEURER, PATENT FAILURE: HOW JUDGES, BUREAUCRATS, AND LAWYERS PUT INNOVATION AT RISK 58-61 (2008) (discussing the problem of a climate of uncertain claim construction in patent courts).
223. R. Polk Wagner & Lee Petherbridge, Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance, 152 U. PA. L. REV. 1105, 1176 (2004).
224. The relationship between the level of judicial specialization and the number of decisional units is imperfect. Judges on a particular court may hear cases in multiple fields of law but have exclusive jurisdiction over one or more of those fields. Thus, advocates of the Federal Circuit's creation emphasized the potential advantage of enhanced uniformity in the standard of patentability, even though patent law was only one of the fields in which the court would work. Donald W. Banner, Witness at the Creation, 14 GEO. MASON L. REV. 557, 560 (1992). Indeed, a court with very broad jurisdiction may have exclusive jurisdiction over a particular class of cases. For example, appeals from certain administrative agencies go solely to the federal court of appeals for the District of Columbia. 28 U.S.C. §§ 1291 historical and revision notes, 1294 orders reviewable (2006). Conversely, if judges are specialized but cases are divided among a large number of them, uniformity is unlikely. This is true of the bankruptcy courts, which currently have more than three hundred judges.
225. The concentration of cases in a field among a small number of judges might be considered a second dimension of specialization. See Lawrence Baum, Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals, 11 LAW & SOC'Y REV. 823, 826-27 (1977).
226. This discussion of the effects of specialization draws in part from Baum
227. Of course, the same judge could behave quite differently on a specialized court than on a generalist court. For a discussion of the effects of specialization that are separate from the identities of judges, see infra Part II.B.2-3.
228. Of the thirty-two active, senior, and special trial judges on the court as of January 2010, all had substantial experience in tax law prior to their appointments. See U.S. Tax Court, Judges, http://www.ustaxcourt.gov/judges.htm (last visited Mar. 28, 2010) (describing the biographies of the judges).
229. see also Nominations of David L. Aaron, Mary Ann Cohen, Margaret Ann Hamburg, M.D., Stanford G. Ross, Ph.D., and David W. Wilcox, Ph.D.: Hearing Before the S. Comm. on Finance, 105th Cong. 48, 52-54 (1997) (biographical information of Mary Ann Cohen, J., U.S. Tax Court) (recounting the extensive tax law background of Judge Mary Ann Cohen, the only judge whose prior tax experience is not disclosed on the U.S. Tax Court's website).
230. Effectiveness is an imprecise term that requires some discussion. Advocates of and commentators on judicial specialization often refer to expertise rather than effectiveness.
231. What they mean, however, is that expertise can produce more effective decisionmaking. In conventional legal terms, effectiveness means interpreting the law more accurately. However, effectiveness can be understood more generally in terms of what judges are trying to accomplish. For judges who seek to advance their conceptions of good policy, effectiveness refers to success in identifying the choices that are consistent with those conceptions. For more information on the meaning of effectiveness and related concepts in the context of judicial specialization.
232. See, e.g., HERBERT A. SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISION-MAKING PROCESSES IN ADMINISTRATIVE ORGANIZATION 10, 20 (1947) (noting expertise, responsibility, and efficiency as the expected benefits of specialized administration).
233. Efficiency and effectiveness in themselves are policy neutral, and they are usually treated as such. However, they may affect the interests of the two sides in litigation. For instance, judges who develop expertise in a field might tend toward one side. Indeed, advocates of judicial specialization often assume that their side will benefit from judicial expertise. See, e.g., Michael Landau & Donald E. Biederman, The Case for a Specialized Copyright Court: Eliminating the Jurisdictional Advantage, 21 HASTINGS COMM. & ENT. L.J. 717, 774-84 (1999) (asserting that a specialized copyright court would produce more correct and consistent results, which would favor copyright holders). Similarly, efficiency could speed the completion of cases, which might favor the interests of one side.
234. For more information on the preferences of patent lawyers.
235. Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, 103 COLUM. L. REV. 1035, 1075 (2003). Indeed, once presidents began to appoint patent lawyers to the Court of Customs and Patent Appeals in the 1950s, this court adopted a more lenient standard of patentability.
236. The positive effects of judges' specialized experience on their effectiveness might be countered by negative effects, because specialized judges may lack knowledge about developments in other fields of law. Similarly, the effects of specialization in bringing judges with expertise to a court might be countered by the relative unattractiveness of a specialized court to some of the most qualified candidates for judgeships. For a discussion of these possible negative effects of specialization on effectiveness.
237. Rufus E. Miles, Jr., The Origin and Meaning of Miles' Law, 38 PUB. ADMIN. REV. 399, 399-400 (1978).
238. The number of decisional units is also relevant. The division of bankruptcy cases among more than three hundred judges, each of whom decides cases as an individual, means that any specific bankruptcy judge has less impact on the interests of a group that cares about bankruptcy law than a member of the Court of International Trade or the Federal Circuit has for groups that care about the fields in which these courts work.
239. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-123 (1974).
240. At the state level, judicial specialization is greatest in criminal law. Of the current specialized federal courts, most hear solely litigation in which the government is a party. (The bankruptcy courts hear primarily cases involving private parties, and the Federal Circuit hears a mix of government and private litigation.).
241. Herbert M. Kritzer, The Government Gorilla: Why Does Government Come Out Ahead in Appellate Courts?, in IN LITIGATION: DO THE "HAVES" STILL COME OUT AHEAD? 342, 342-70 (Herbert M. Kritzer & Susan Silbey eds., 2003).
242. The Foreign Intelligence Surveillance Court rules on applications for warrants for electronic surveillance for national security purposes. For a discussion of the court and the Chief Justice's appointments to its judgeships, see Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239, 252-57 (2006). The Foreign Intelligence Surveillance Court of Review hears government appeals from denials of warrants; because there are few such appeals, the Court of Review seldom meets.
243. See Elec. Privacy Info. Ctr., Foreign Intelligence Surveillance Act Orders 1979-2007, http://epic.org/privacy/wiretap/stats/fisa_stats.html (last visited Mar. 28, 2010) (compiling the record of the Foreign Intelligence Surveillance Court, based on the court's annual reports).
244. For this reason, the government's opponents sometimes suspect that the government is building a favorable bias in the courts through selection of judges. This was true of the Tax Court's early days. See HAROLD DUBROFF, THE UNITED STATES TAX COURT: AN HISTORICAL ANALYSIS 85-86 (1979) (discussing a fear of bias in selections made by the Treasury Department in 1924).
245. cautioning against sweeping conclusions given the dearth of data on the effects of specialized courts. There does exist an array of research that provides insights into the effects of judicial specialization.
246. See, e.g., Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Inside the Bankruptcy Judge's Mind, 86 B.U.L. REV. 1227, 1230 (2006) (using bankruptcy judges as a case study to examine the impact of specialization on judicial decisions).
247. Some of this research takes the form of detailed studies of particular courts or sets of courts. E.g., 2 JONATHAN LURIE, PURSUING MILITARY JUSTICE: THE HISTORY OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES, 1951-1980, at 71-106 (1998).
248. ELLEN RYERSON, THE BEST-LAID PLANS: AMERICA'S JUVENILE COURT EXPERIMENT 3-16 (1978).
249. studying several Chicago courts.
250. James R. Elkins, The Temporary Emergency Court of Appeals: A Study in the Abdication of Judicial Responsibility, 1978 DUKE L.J. 113, 120-53.
251. Other research makes direct comparisons between generalist and specialized courts. E.g., MICHELE SVIRIDOFF ET AL., DISPENSING JUSTICE LOCALLY: THE IMPLEMENTATION AND EFFECTS OF THE MIDTOWN COMMUNITY COURT 109-38 (2000) (comparing the Manhattan Midtown Community Court and Downtown Manhattan Court).
252. comparing the Court of International Trade, the Federal Circuit, and generalist federal courts.
253. Michael Morley, The Case Against a Specialized Court for Federal Benefits Appeals, 17 FED. CIR. B.J. 379, 383-84 (2008) (comparing reversal rates between generalist and specialist courts subject to Federal Circuit review).
254. Jonathan Remy Nash & Rafael I. Pardo, An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review, 61 VAND. L. REV. 1745, 1803-07 (2008) (comparing the rates at which the courts of appeals reversed specialist bankruptcy appellate panels and generalist federal district courts in bankruptcy cases).
255. A second example is the lack of full uniformity of legal standards in patent law despite the consolidation of patent appeals in the Federal Circuit.
256. For a discussion of the motivations for the establishment of federal specialized courts.
257. HAROLD W. CHASE, FEDERAL JUDGES: THE APPOINTING PROCESS 45-46 (1972). In at least one instance, an appointment strategy actually worked against the government's interest as a litigant. The Reagan and George H.W. Bush administrations chose judges for the Claims Court (now the Court of Federal Claims) whose conservative views inclined them to favor claims against the government under the Takings Clause.
258. See W. John Moore, 'Just Compensation,' NAT'L J., June 13, 1992, at 1404, 1405-06.
259. See, e.g., HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 153-67 (1973) (noting the complexity of patent and tax laws as historical factors motivating specialization).
260. See Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, 51 LAW & CONTEMP. PROBS. 243, 262-65 (1988) (concluding that demeanor evidence is often no more reliable than flipping a coin to determine truth or falsity and that people identify the wrong behavior as indicating the truth or falsity of a speaker's statement).
261. After an influx of drug prosecutions in the 1970s and 1980s, New York City and Chicago created special drug courts to process these cases more efficiently. (These drug courts were different from the "problem-solving" drug courts that were later established in many cities.) One result was that patterns of case outcomes changed.
262. See BUREAU OF JUSTICE ASSISTANCE, U.S. DEPT. OF JUSTICE, ASSESSMENT OF THE FEASIBILITY OF DRUG NIGHT COURTS 10-16 (1993).
263. Steven Belenko, Jeffrey A. Fagan & Tamar Dumanovsky, The Effects of Legal Sanctions on Recidivism in Special Drug Courts, 17 JUST. SYS. J. 53, 56-58 (1994).
264. Barbara E. Smith et al., Burning the Midnight Oil: An Examination of Cook County's Night Drug Court, 17 JUST. SYS. J. 41, 46-47 (1994).
265. See P.J. Federico, Evolution of Patent Office Appeals, 22 J. PAT. OFF. SOC'Y 838, 853-56 (1940) (noting an increased caseload and time pressures, which required greater delegation to achieve more individualized attention for patent-related issues).
266. For a discussion of "Identities of Judges" and "Influences on Judges,".
267. see also Howard Gillman, Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism, in THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT 138, 141 (Ronald Kahn & Ken I. Kersch eds., 2006) ("[I]t is comparatively more difficult to find decision makers who will be reliable on a wide range of issues than it is to find appointees who will act reliably over a narrowly defined set of policies....").
268. For federal courts, one relevant factor is that much of the congressional oversight of generalist courts occurs in the Judiciary Committees, whereas oversight of some specialized courts occurs in the committees whose jurisdiction is in the court's field (such as the Veterans' Affairs committees for the Court of Appeals for Veterans Claims). Members and staff on these specialized committees have relatively strong incentives and capabilities for monitoring the court in their field.
269. Among current courts, this was true of the Court of Military Appeals (now the Court of Appeals for the Armed Forces), the Foreign Intelligence Surveillance Court, and the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims).
270. Legislation of this type was enacted for the Foreign Intelligence Surveillance Court. See 50 U.S.C. § 1803(a) (2006) (establishing that judges need to write opinions only if they deny an application for surveillance).
271. Requiring a limited scope of probable cause inquiry for warrant applications). Another example was the Emergency Court of Appeals, which was created to hear challenges to the validity of price control policies during World War II. See Emergency Price Control Act of 1942, Pub. L. No. 77-421, ch. 26, § 204(b), 56 Stat. 23, 32 (expired 1947) (limiting the grounds on which the court could hold a regulation or order illegal.
272. Prohibiting a stay of enforcement of a regulation or order while a case was pending. For a discussion of these and other provisions intended to protect the price control program from judicial interference, see William Jerome Wilson, The Price Control Act of 1942, in THE BEGINNINGS OF OPA 1, 99-103 (Office of Temporary Controls ed., 1947).
273. For evidence supporting this hypothesis.
274. For a discussion of central panels of administrative judges in the states.
275. This is especially true if the specialized court has a supporting staff with expertise in immigration issues. To the extent that law clerks and other staff members in a specialized court are themselves specialists in the relevant field, they extend the benefits of the expertise that judges bring to a court or gain through their experience on the court.
276. Complaints by court of appeals judges and others about the quality of decisions by immigration judges should not be given too much weight, because these complaints are largely based on the most egregious judges and decisions. Still, the frequency and severity of these complaints strongly suggest that any positive effects of specialization on the quality of decisions are outweighed by the negative effects of case difficulty and caseload pressure. See Alexander, (discussing readily identifiable patterns of repeated errors in immigration cases).
277. noting criticism for a lack of transparency in the appointment process for immigration judges. The BIA has also been subject to strong criticism. See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 829-31 (7th Cir. 2005) (noting a history of criticism of immigration judges and the BIA on the Seventh Circuit).
278. The high rates with which some immigration judges accept asylum applications might reflect an assertiveness based on the self-confidence that specialization fosters.
279. E.g., Diane P. Wood, Generalist Judges in a Specialized World, 50 SMU L. REV. 1755, 1756 (1997). For other references by court of appeals judges to their status as generalists.
280. The diversity of the cases heard by the courts of appeals as a whole is shown in ADMIN. OFFICE OF THE U.S. COURTS,. Analysis of case data compiled by the Federal Judicial Center indicates that circuits vary in their mixes of cases, but each circuit hears a wide range of cases. This analysis is based on data from the Inter-University Consortium of Political and Social Research, Federal Court Cases: Integrated Database, 2008, which may be downloaded at http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/25002;jsessionid=398D0E4929DD4BC31892EC0C98263ABF?q=federal+judicial+center. Most or all of the circuits require random assignment of cases to judges, and there is a general norm of random assignment.
281. See ADMIN. OFFICE OF THE U.S. COURTS
282. This percentage was 31 percent. U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT, APPEALS FILED, BY CATEGORY, FY 2008 (2008), http://www.cafc.uscourts.gov/pdf/ChartFilings08.pdf. However, the 2009 proportion was higher, at 36 percent. U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT,. In the same year, the proportion of Second and Ninth Circuit filings that came from the BIA dropped below 30 percent.
283. In fiscal year 2008, nearly three-quarters of all petitions for review of BIA decisions came to the Second and Ninth Circuits-45 percent in the Ninth and 28 percent in the Second. See ADMIN. OFFICE OF THE U.S. COURTS, (listing the types and number of appeals by Circuit). In fiscal year 2009, the proportion was nearly two-thirds.
284. See NANCY SCHERER, SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS 50-74 (2005) (identifying criminal defendants' rights, abortion, states' rights, and civil rights as issues that affect the judicial appointment process).
285. One exception is Judge Carlos Bea of the Ninth Circuit, who not only handled some immigration cases as an attorney but was himself a successful litigant at the BIA. Immigration Litigation Reduction, (testimony of Carlos T. Bea, J., U.S. Court of Appeals for the Ninth Circuit). Judge Bea was nominated by President George W. Bush in 2003. If officials in the Bush administration had wanted to shape immigration policy on the courts of appeals through judicial appointments, they probably would not have chosen a judge who contested a government immigration decision in the BIA.
286. The extent of this increase across the courts of appeals is striking. In 1984, the courts of appeals received only 490 cases that had been decided by the INS. (This total may have included only direct appeals from the INS, or it may have included cases that came up through the district courts.) The Ninth Circuit received more than 60 percent of these cases, leaving only 183 to be divided among panels and judges in the other circuits. See Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 IOWA L. REV. 1297, 1339 n.261 (1986).
287. ADMIN. OFFICE OF THE U.S. COURTS.
288. Benslimane v. Gonzales, 430 F.3d 827, 829-30 (7th Cir. 2005).
289. To a considerable degree, these preferences seem to follow ideological lines. Two related studies found strong evidence that Democratic appointees in the Ninth Circuit were more favorable to asylum claims than Republican appointees. Joshua B. Fischman & David S. Law, What Is Judicial Ideology, and How Should We Measure It?, 29 WASH. U. J.L. & POL'Y 133, 192-203 (2009).
290. David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. CIN. L. REV. 817, 843-63 (2005). A less systematic analysis found suggestive evidence that Democratic and Republican appointees responded differently to asylum cases in the Sixth Circuit, but not in the Third Circuit.
291. The same study found that differences in decisional tendencies across the circuits in 2004-2005 correlated fairly well with the ideological reputations of the circuits. An analysis across all of the courts of appeals, using a measure of judges' ideological positions that is more complicated than partisan affiliation, found a statistically significant relationship between those positions and asylum decisions in the 2003-2008 period but not in the 1998-2002 period.
292. See, e.g., SELECT COMM'N ON IMMIGRATION & REFUGEE POLICY, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST 248-50 (1981) (suggesting the creation of an Article I immigration court).
293. Peter J. Levinson, A Specialized Court for Immigration Hearings and Appeals, 56 NOTRE DAME LAW. 644, 651-55 (1981) (advocating a specialized judicial model for immigration courts).
294. Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 SAN DIEGO L. REV. 1, 18-24 (1980) (suggesting the formation of a new Article I immigration court).
295. see also Immigration Litigation Reduction, (testimony of John McCarthy Roll, J., U.S. District Court for the District of Arizona) (advocating for a consolidated immigration court).
296. COMM'N ON IMMIGRATION, ABA, REFORMING THE IMMIGRATION SYSTEM: EXECUTIVE SUMMARY 43-48 (2010), available at http://new.abanet.org/Immigration/Documents/ReformingtheImmigrationSystemExecutiveSummary.pdf (considering the possibilities for restructuring immigration adjudication and proposing the creation of an Article I immigration court). Levinson's proposal was a model for Roberts's proposal.
297. Discussing various reform proposals. In 2006, the Senate passed a bill that would have asked the Government Accountability Office to study three possible changes: (1) consolidating all such appeals into an existing circuit court, such as the United States Court of Appeals for the Federal Circuit; (2) consolidating all such appeals into a centralized appellate court consisting of active circuit court judges temporarily assigned from the various circuits, in a manner similar to the Foreign Intelligence Surveillance Court or the Temporary Emergency Court of Appeals; or (3) implementing a mechanism by which a panel of active circuit court judges shall have the authority to reassign such appeals from circuits with relatively high caseloads to circuits with relatively low caseloads. S. 2611, 109th Cong. § 707 (2006). The House did not consider the bill.
298. Immigration Litigation Reduction, (statement of Doris Meissner, Senior Fellow; Muzaffar A. Chishti, Director; & Michael J. Whishnie, Fellow, Migration Policy Institute). Another proposal would move the adjudication of immigration cases from the DOJ to an independent agency in the executive branch. U.S. COMM'N ON IMMIGRATION REFORM, 1997 REPORT TO CONGRESS: BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 175-83 (1997), available at http://www.utexas.edu/lbj/uscir/becoming/goals.pdf.
299. The adoption of such proposals could be consequential in other respects, however, by providing greater insulation of judges from ex post control. That is especially true of Article I status. Among specialized federal courts, the Tax Court and the Court of International Trade (formerly the Customs Court) began as executive branch bodies and later moved to the judicial branch. (describing the evolution of the Tax Court).
300. JOSEPH E. LOMBARDI, THE UNITED STATES CUSTOMS COURT: A HISTORY OF ITS ORIGIN AND EVOLUTION 52-62 (1976). There is no systematic evidence on the consequences of these shifts.
301. Other forms could be (and may have been) suggested. The discussion in this Part focuses on the three forms described here.
302. It is uncertain whether a structure in which immigration cases did not go to any Article III courts prior to Supreme Court review on certiorari would run into constitutional problems. One commentary on the Roberts proposal concluded that the question was open.
303. Robert E. Juceam & Stephen Jacobs, Constitutional and Policy Considerations of an Article I Immigration Court, 18 SAN DIEGO L. REV. 29, 35-43 (1980). A leading commentary on the question of when Article III courts are required pointed to the unclear state of Supreme Court doctrine but argued for an interpretation under which appellate review by an Article III court is required.
304. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916, 943-49 (1988). Under that interpretation, the author argued, the use of administrative courts to decide immigration cases was acceptable because of the role of the courts of appeals.
305. For a more recent analysis that reflects the continued uncertainty about when Article III courts are required, see David A. Case, Article I Courts, Substantive Rights, and Remedies for Government Misconduct, 26 N. ILL. U. L. REV. 101, 191-211 (2005).
306. See Executive Office for Immigration Review, (statement of Stephen H. Legomsky, Professor, Washington University School of Law) (discussing the changes in immigration adjudication over time).
307. (statement of Sen. Specter, Chairman, S. Comm. on the Judiciary).
308. Testimony of Jon O. Newman, J., U.S. Court of Appeals for the Second Circuit.
309. The Legomsky proposal would replace the BIA and the courts of appeals with a new Court of Appeals for Immigration. 1714. The court would be staffed by judges from the district courts and courts of appeals. Judges would serve full-time on the immigration court during their period of service on this court for a fixed term, perhaps of two years.
310. 50 U.S.C. § 1803(a) (2006) (setting forth procedures for selecting judges for the Foreign Intelligence Surveillance Court).
311. setting forth procedures for selecting judges for the Foreign Intelligence Surveillance Review Court.
312. Theodore W. Ruger, The Judicial Appointment Power of the Chief Justice, 7 U. PA. J. CONST. L. 341, 359-67 (2004) (discussing the Emergency Court of Appeals and the Temporary Emergency Court of Appeals, along with other courts that borrowed their judges).
313. Testimony of Carlos T. Bea, J., U.S. Court of Appeals for the Ninth Circuit.
314. Immigration Litigation Reduction, (testimony of John McCarthy Roll, J., U.S. District Court for the District of Arizona).
315. Testimony of David A. Martin, Professor, University of Virginia School of Law.
316. Testimony of John McCarthy Roll.
317. The set of suggestions that follows is my own. For an insightful analysis of the effects of establishing a specialized immigration court, see Legomsky,. Professor Legomsky concludes that, on balance, substituting a specialized court for the courts of appeals would be undesirable. "The advantages of generalist review, especially in an area in which fundamental liberty interests are at stake, are in my view enough to outweigh any marginal consistency gains from specialization.".
318. Analyzing the specialized immigration court proposals of the 1980s. Professor Legomsky's own proposal for a Court of Appeals for Immigration was designed to avoid the negative effects of specialization by giving jurisdiction over appeals to judges who have substantial experience in the generalist federal courts.
319. Testimony of Paul R. Michel, C.J., U.S. Court of Appeals for the Federal Circuit.
320. See Timothy S. Barker, A Critique of the Establishment of a Specialized Immigration Court, 18 SAN DIEGO L. REV. 25, 27 (1980). Another type of effect that might occur is a negative reaction to the repetition of cases in a single field. In light of concerns about burnout among immigration judges, it is interesting that Senator John Cornyn used the same term to refer to this potential effect for appellate judges who heard only immigration cases.
321. Immigration Litigation Reduction, (statement of Sen. Cornyn, Member, S. Comm. on the Judiciary).
322. Still, there has been some concern that immigration politics would come into play in the selection of federal circuit judges. See, e.g., Editorial, Don't Tamper with the Courts, N.Y. TIMES, Apr. 7, 2006, at A24.
323. In the case of the Special Division of the Court of Appeals for the D.C. Circuit, which chose special counsel for investigations of criminal allegations against high-level officials of the executive branch, Chief Justice Rehnquist's appointments to the Special Division arguably led to the impeachment of President Clinton.
324. See JEFFREY TOOBIN, A VAST CONSPIRACY: THE REAL STORY OF THE SEX SCANDAL THAT NEARLY BROUGHT DOWN A PRESIDENT 70-73 (1999).
325. Chief Justice Roberts's record on these issues thus far is too slim to provide a basis for firm conclusions about his views. See Kucana v. Holder, 130 S. Ct. 827 (2010) (joining a unanimous decision favorable to the individual).
326. Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (joining a unanimous decision favorable to the government).
327. Nken v. Holder, 129 S. Ct. 1749 (2009) (writing a majority opinion favorable to the individual).
328. Negusie v. Holder, 129 S. Ct. 1159 (2009) (joining a majority opinion somewhat favorable to the individual).
329. Dada v. Mukasey, 128 S. Ct. 2307 (2008) (joining a dissenting opinion favorable to the government).
330. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (joining a majority opinion favorable to the government).
331. Lopez v. Gonzales, 549 U.S. 47 (2006) (joining a majority opinion favorable to the individual).
332. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (joining a majority opinion favorable to the government).
333. In a court of designated judges from the various circuits, immigration might constitute full-time work for a certain period, but that period would still constitute only a portion of the judges' work in the long term.
334. The relative benefits and drawbacks of specialization will vary among fields of law. For a discussion of characteristics of fields that should be taken into account.