Via How Appealing, this story in the Washington Post relates that an internal review in the Sixth Circuit has concluded that the chief judge "named himself to a three-judge panel that was to hear the case even though court rules specify that assignments are made at random," and then "delayed for five months a request to have the full appeals court hear the case, ensuring the exclusion of two conservative judges who were planning to retire," according to the review as cited by the Post. How Appealing also has this link to the Court's conclusions, posted on the Judicial Watch website.
Howard Bashman calls this a "most remarkable development," and has more background here. I never heard of anything like it, and it is disappointing. Maybe there's more to it somehow (apparently one of the events occurred during the day on September 11, 2001, which could not have helped anyone's thought processes). I wonder how anyone ever knew to make such a complaint in the first place - apparently Judical Watch figured it out (as detailed here) from the dissenting opinions and the records in the cases.
The case to which the judge allegedly appointed himself was one where the original panel included a visiting judge, and the second panel should have included the same judge, or a substitute chosen at random. I had a case that was appealed twice and, expecting that a second appeal would be before the same panel, my plan after the first appeal was to win summary judgment in district court on a record that would satisfy the two judges who voted against my side in the first appeal. (No rocket science, there.) Before the second appeal, one of them died, Judge Murnaghan. I told the court in the second oral argument what I had done, the efforts I had made to satisfy Judge Murnaghan's opinion from the first appeal, and that even though he wasn't there, I thought I had the answers to his points. When the judges came down to shake hands after the argument, one of them pointed out the portrait of Judge Murnaghan in the courtroom. It never occurred to me before reading all this that maybe someone picked the third judge other than randomly, and it does not occur to me now.
The internal workings of a court to me are like jury deliberations - I don't want to know or believe anything but that the parties are treated fairly and cases decided straight up. If the rules say the judges are assigned at random, I believe that's what happens. Somewhat similarly, I am hopeful that jurors actually follow their instructions. But, sometimes my naivete takes a bruising. One former juror called me at the office following one of the first cases I tried and after he told me all the things the jury did to reach their decision I wished he hadn't. My next thought was what had I done, was it ethical to talk to a juror, even days after the trial was over - I thought to myself, "wasn't that how they got Clarence Darrow?" I started calling around frantically until finally someone who knew pointed me to the right provision in the ethics rules and reassured me that, by any measure, I was no Clarence Darrow.
The end of the story is that the other side was not happy with the verdict, and filed a motion for retrial, so the case went back before Judge Turk of the W.D. Va for a hearing on the motion. The first words out of his mouth at the hearing were something like this: "Fellows, it's good to see you, now tell me, what have you heard about what the jury was thinking when they decided this case?"