‘Kind of a mess’: D.C. Circuit arguments enter the coronavirus era

E. Barrett Prettyman Courthouse in Washington.
6-8 minutes
Griffith is typically an active questioner and was the first out of the gate to challenge Charles Rothfeld, the attorney representing groups opposing the administration’s effort to expand the use of less-regulated, short-term insurance policies. But after some spirited jousting with Rothfeld, Griffith fell silent — involuntarily, it turned out.
“I was dropped from the call for about five or six minutes and I want to make clear that I’m back on it now,” said Griffith, a George W. Bush appointee. “I tried to get in and I was on a permanent mute. And, I don’t know, I’m not on the screen anymore. By the phone, it’s kind of a mess.”
At the outset of the arguments — which the public and press could hear live via a YouTube link — a court clerk announced the lawyers wouldn’t have anything like the courtroom’s green, yellow and red timing lights that help pace arguments. Instead, a bell replaced those signals.
And that wasn’t the only extraneous sound on the call — there were random beeps, muddled voices, overtalking and some long pauses.
One of those pauses involved an effort by Judge Judith Rogers to question Justice Department attorney Daniel Winik, who was defending the health-insurance policy changes. Rogers launched into a question about Congress’ intent, but she trailed off, becoming inaudible.
“You’re honor, I apologize. I’m actually not able to hear your question. It tailed off,” Winik said. “I was able to hear the very beginning of the question and lost you about 10 seconds in. I’m sorry with the difficulties of this format.”
After some more noises on the line, Winik added: “Your honor, I’m not hearing anything.”
“Hello? And….?” Rogers replied.
The arguments in that case eventually got back on track. The later one, involving the Weather Service forecasters, went more smoothly. However, there were still awkward pauses and some indistinct sounds.
“Am I still on? I’m getting some weird noises,” Federal Labor Relations Authority Solicitor Noah Peters asked at one point.
“You’re still on,” a couple of the judges reassured him.
Peters told POLITICO after the session that it was a bit strange to be arguing into a phone at his Arlington, Va., home rather than from a courtroom lectern. However, he said his office also held a “virtual” moot court session in recent days rather than in person, an adjustment required by the federal government’s virus-related directive for employees to telework wherever possible.
“The only thing I had trouble adjusting to [was] when the questions stopped at one point and I was wondering if I had logged off. I had to blurt out, ‘Hello?’ to see if the line had gone dead,” Peters said. “It can be tough to know when somebody is starting to speak and stopping. For the judges, there was a little overtalking of one another, which you don’t normally see at a live, in-person argument.”
Rothfeld, the attorney in the insurance case, said in an interview that the arrangement is “not ideal,” but noted some advantages to arguing over the phone. One is you can spread out your papers and notes as you see fit. Also: courtroom attire isn’t required. Even shoes are optional.
“It’s better in that you can set yourself up. You can even argue in your socks, if you want, which I never get to do at the D.C. Circuit,” he said.
Asked if he had actually argued shoeless, Rothfeld said: “I probably shouldn’t have owned up to it, but yes.”
While arguments by conference call are uncommon in most federal courts, they’re not unheard of. An argument at the 9th Circuit in 2017 on blocking President Donald Trump’s travel ban took place by phone with the audio streamed live on cable TV and YouTube. It was something of a sensation, drawing millions of viewers on TV and the web.
Some appeals courts also use video conferencing or a speakerphone to beam in judges who can’t be at a particular session.
The Supreme Court —which bars cameras and only rarely allows live audio — has not yet followed the trend of other courts to harness new technology for its public work in the rejiggered coronavirus age. The high court has postponed arguments that were set to take place in about a dozen cases next week and the week after, including a trio of cases about access to Trump’s financial records.
Although arguments before three-judge panels at the D.C. Circuit are going forward for now by phone, that court appears reluctant to use that format for the larger, en banc sessions held in exceptional cases. On Tuesday, the court postponed an 11-judge argument that was set to take place next week about the Federal Energy Regulatory Commission’s power to delay action in cases it is considering.
An order said that session is being put off until April 28, when most of the court’s judges are scheduled to be together for arguments in two much higher-profile disputes: a fight over the House’s effort to force testimony from former White House counsel Don McGahn, and a separate battle over a House-filed lawsuit challenging Trump’s plan to re-allocate billions of dollars in funds for border wall construction.
While those three cases are now set for argument that day, the court has also warned that changes are possible to the timing and format of arguments depending on how the pandemic progresses.
Some parties are seeking to delay arguments so they can take place in the more traditional in-person fashion, but the court seems keen to keep to its current schedule where possible.
Last week, an attorney representing Playboy’s White House reporter, Brian Karem, in a credentialing dispute with the White House joined with a Justice Department lawyer to ask that arguments the D.C. Circuit had set for Monday be put off until May. The motion was rejected, without explanation, meaning arguments will continue as scheduled on Monday — apparently by telephone.
Based on the way things played out Friday, lawyers involved said they don’t expect the judges to opt for phone arguments as a matter of routine anytime soon.
“It is better than postponing the argument. It is better than canceling the argument,” said Peters, the Federal Labor Relations Authority attorney. “I don’t think, obviously, that it will become a feature of the landscape, but in all honestly I think it went well — as an experiment.”
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March 20, 2020
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