Howard Bashman‘s latest appellate column in Legal Intelligencer is provocative. He criticizes the Third Circuit’s new argument-posting procedures (Rule 2.6 here) as “a set of procedures that even the most hardened bureaucrat would find inspirational.” The upshot, he says, is that only two videos were posted in the first two months, “the softest of imaginable launches.” The Third Circuit’s approach, he writes, is “remarkably cautious” and “seems antiquated and unnecessarily restrictive.”
Bashman suggests this fix:
Instead of creating unnecessary extra work for the lawyers and judges on any given argued case, the Third Circuit should change its policy to provide that the video of all oral arguments will be posted online unless the majority of a panel, either on its own motion or at the request of counsel for good cause shown, decides against it.
It’s a fine column that makes a reasonable point with vigor, but I see the issue a bit differently.
I’m disinclined to criticize the Third Circuit for not going as far as the Ninth Circuit when it’s gone further than all the other circuits. After all, it may well be that, without the cautious procedures Bashman laments, the court would not have been willing to post argument video at all.
And, let’s face it, these are historically scary times to be a federal judge exposed to the public eye. Just ask now-inactive Judge Barry. A presidential candidate turned her into national news by distorting what she’d written in a decade-old opinion. Think what they could have done to her if they’d been able to pore over dozens of argument videos, cherry-picking the most-inflammatory sounding moments to feature in attack ads and viral videos.
True, Judge Barry’s situation is unlikely to recur, but two Third Circuit judges have been mentioned within the past year as short-list Supreme Court nominees. Of course opponents of a Supreme Court nomination would fine-tooth comb every single public argument video the nominee appears in.
It’s not easy being a good appellate judge if you have to weigh every question for how it would play on Fox News or Huffington Post. Asking questions during oral argument is fundamentally different from crafting an opinion. During argument, judges think out loud, they test ideas and limits, and they play devil’s advocate. Sometimes they ask perfectly appropriate questions which, out of context, could be made sensational. They don’t challenge every outrageous argument. And they’re human, so sometimes they say things off the cuff that upon reflection they regret.
All that, plus video can be so much more incendiary and headline-grabbing than dry quotes from an opinion.
Bashman is right that posting argument videos is valuable for lawyers and the public. I share his hope that the pace of video posting increases over time. But I’m content with the procedures the court has in place, and I have no quarrel with the court’s modest start. If I were a Third Circuit judge, I might feel “remarkably cautious” about posting argument videos willy-nilly, too.