This old timer’s perspective regarding substitutions of judges for shorthanded appeals at the Court of Appeals might shed some historical light. In baseball, an early call would be like signaling the bullpen for a substitution before the first pitch is thrown. Utilitarian factors like time and expense do not, in my opinion, warrant a change from the long-established last-resort option into a new front-load first-resort practice.

The short-cut route when the court is not at full seven-member strength devalues the jurisprudential corpus of well-settled precedents that are the hallmark of a court-of-last resort, providing long-lasting stare decisis reliability. The better policy of wait-and-see, with diligent continuing deliberations among the permanent members, is a virtue well worth practicing because it affords the opportunity to pursue common-ground solutions inter sese for the decisions where recusals or absences occur, and the few where a vouch-in is unavoidably needed.

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