The day after Senior Circuit Judge Max Rosenn died Feb. 7 at the age of 96, following more than 35 years of exemplary service on the 3rd U.S. Circuit Court of Appeals, that court issued a decision by a divided three�judge panel in which Rosenn cast the deciding vote. What, if anything, is wrong with this picture?
Death is a fate that no human being — not even federal appellate judges — can avoid. Therefore, it is surprising that no uniform approach has emerged from either the federal appellate courts or from Congress concerning whether a deceased judge is entitled to cast the deciding vote in support of an appellate court’s judgment.
