Thread by @marinklevy

On this week’s episode of Judicial History, I give you intrigue, I give you animosity btw judges, I give you a cameo by Alexander Burr, I give you romance . . . er, sorry, there’s no romance. But who needs romance when we have . . .⭐️The Origin Story of Visiting Judges⭐️

(⚖️🧵)

Let’s begin by setting the scene . . . 🎭

Each year most COAs are “visited” by other judges—district judges, other circuit judges, and judges from the Court of International Trade. These judges “sit by designation” and last year helped to decide over 3,000 cases. (!) 🤯 (2/x)

How did this fascinating practice begin? How is it that a judge who is nominated & confirmed for one particular seat can sit on another court and decide a case for that court? (E.g., how does Judge Rakoff, a judge from SDNY, decide cases for the 9th Circuit?)

- HOW? -

(3/x)

Well, like many fabulous things in life – from air conditioning to the potato chip, from the tuxedo 🤵‍♀️ to the kodak camera 📸 – the origins of courts having visitors can be traced back to the great state of New York. (Big 🍎)

(We get *all* the fun facts today.)

(4/x)

History reveals that the judge for the Southern District of NY was authorized to hold court for the judge of the Northern District when those districts were first created in 1814 -apparently due to the ill health of Judge Tallmadge of the Northern District – this guy right here:

By way of background, Judges Tallmadge and William P. Van Ness (known as Aaron Burr's "second" in his duel w/ Alexander Hamilton ⭐️) had served together as the 2 judges for the District of New York since New York obtained a 2nd judgeship in 1812. Van Ness is this guy right here:

But Tallmadge wasn’t having it! 🙅‍♂️ According to H. Paul Burak (in his divine history of the SDNY) there was “animosity between the two judges" which "soon led Tallmadge to seek the separation of the State into two districts so that he might serve in one, unfettered by Van Ness" !

Tallmadge got his wish or *so it would seem.*

Congress split the District in "An Act for the better organization of the courts of the United States within the State of New York," with Tallmadge assigned to the Northern half and Van Ness to the Southern half.

BUT . . . (8/x)

The same Act made it the duty of Judge Van Ness to hold district court "in the said northern district, in case of the inability, on account of sickness or absence, of the said Matthias B. Tallmadge to hold the same." 🤦‍♀️

(Poor Judge Tallmadge must have felt so foiled!) (9/x)

Once Van Ness was authorized to assist Tallmadge, well Van Ness conducted the majority of the work in the Northern district as well as all the work in his own.

Now in addition to being disappointing for old Tallmadge, this was a ⭐️BIG MOMENT⭐️ for judicial administration.

As Judge Charles M. Hough remarked, while this arrangement began as "a concession to Tallmadge's physical weakness" - ouch 🙍 - "it marks the beginning of the system of using Judges out of their own Districts in order to relieve [the] press of business." 🎆 (11/x)

Now as a brief post script, because there was no statute authorizing the use of visiting judges, Congress repeatedly passed temporary laws to maintain this arrangement between the Northern and Southern Districts (and between Tallmadge and Van Ness). 👨‍⚖️👨‍⚖️ (12/x)

In 1818, Rep. John Forsyth of Georgia asked why the House was being called upon to legislate "so frequently" for the courts of the District of New York, and indeed why it had to be "an exception to the general judiciary system of the United States." (🍑 didn't like 🍎)

(13/x)

When told this exception was due to Judge Tallmadge's ill health, Forsyth said pointedly that "[w]hilst his health did not allow him to attend his official duties, it allowed him to travel from New York to Charleston and back every year."

#ArticleIIIShade 🏖️

Now you know how one of the most *fascinating* aspects of our federal judiciary got up and running – out of necessity 😒, out of animosity 😠, and out of ill health (or perhaps, not so much) 🤔.

(Fin)

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