Monday, February 13, 2017
The news has been full of reports about the Ninth Circuit's refusal to grant a stay of the district court's temporary restraining order of President Trump's Executive Order on immigration. Jennifer and Dan both blogged on it last week. I want to take a slightly different look at the Ninth Circuit's denial--first by exploring the unique way in which the Ninth Circuit heard the case and then by looking at possible broader impacts for the Ninth Circuit.
The Ninth Circuit heard argument in the case by telephonic oral argument. I was pretty surprised the first time that I heard of courts using telephonic oral argument. I never saw (or should I say heard) a telephonic argument when I was clerking for the Fourth Circuit, and it seems to defeat some of the purposes of oral argument. William Robinson, the Assistant Director of the Sixth District Appellate Program, wrote in 2007:
On this point, there is near-universal consensus: never argue by telephone if you can avoid it. Mark Greenberg describes telephone oral argument, which he has done three or four times in 25 years, as “like making out with gloves on,” and as discouraging conversation and engagement, which are the requisites of oral argument. Danalynn Pritz notes that there are many visual cues which one gets from the justices during an argument – e.g., a judge rolling his/her eyes – which you have to be there to see, and notes that with phone argument “you miss innuendo and subtlety that could make the difference as to whether you will ever get the judge on your side.”
Last year I argued an appeal which resulted in a reversal, and saw a lot of eyes being rolled while the AG, who argued by phone, was doing a particularly poor job responding to tough questions.
So, never argue by phone, unless you really have no choice, or the issue is so weak, or the court panel so bad, that it won’t make a difference. In which case, maybe you shouldn’t be arguing the case anyway.
I imagine that the argument was done telephonically because (1) it was an emergency motion and (2) the Ninth Circuit is geographically quite large--but in the age of Google Chat and FaceTime it seems like at a minimum a video conference could be used.
The geographic size of the Ninth Circuit brings me to my second point, which is the broader impact of the Ninth Circuit's decision. As Jennifer noted in her post, President Trump has already tweeted his displeasure at the Ninth Circuit. I could see this ruling as providing more fuel to the fire to split the Ninth Circuit. The Arizona senators have already introduced a bill to split the Ninth Circuit. The bill would create a new 12th Circuit that is made up of Washington, Idaho, Montana, Nevada, Arizona, and Alaska. Oregon, Hawaii, California, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit.
As a practical matter, I think that splitting the Ninth Circuit is not a terrible idea. The current court is too big to even hold normal en banc hearings. However, the issue has been a political one in past Congresses. No doubt it will continue to be highly politicized in this Congress.