The Third Circuit should stop holding live arguments to protect its judges

On reflection, I respectfully disagree with the Third Circuit’s current decision to continue holding in-person oral arguments.

I acknowledge that there are sound reasons supporting that decision. Allowing parties to request argument by phone reduces the risk of infection to attorneys and court staff on a case-by-case basis. Practicing social distancing themselves during continuing court operations reduces the risk of infection to judges, their clerks, and court staff. Leaving the decision to individual panels reflects the Third Circuit’s deeply felt culture of mutual respect among its judges. And, as the Court’s notice recognized, it has “constitutional and statutory obligations and responsibilities,” which are not lightly put aside even in a global emergency.

But, in my view, those sound reasons all are overwhelmed a simple fact: continuing to hold live arguments increases the risk of judges being infected by coronavirus and dying, and increasing that risk is intolerable. Live arguments require judges to leave their homes, go out into the world, travel to the courthouse, and be in the courthouse. It is true that I don’t know what measures the Court is taking to protect judges, but do I know that judges and clerks and court staff and lawyers are humans, and humans are fallible. Human mistakes now put federal judges’ lives in danger, at a moment in history when federal judges’ dying would amplify the emergency our nation already faces.

I admire the Third Circuit and its judges for their willingness to carry on with live arguments now. But I believe the Court owes it to the country to protect its judges as best it can, so I hope the Court reconsiders.