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When the U.S. Court of Appeals for the 9th Circuit recently conducted another oral argument on death-row inmate Kevin Cooper’s challenge to his conviction and sentence, the Los Angeles Times reports, none of the three appellate judges was physically present in San Francisco, where the oral argument was taking place. According to the article, two of the judges — M. Margaret McKeown of San Diego and Ronald Gould of Seattle — participated in the Jan. 9 oral argument via videoconferencing, while the most senior judge on the panel — Pamela Rymer of Pasadena, Calif. — participated via telephone because her videoconferencing connection was not functioning. The article quotes the 9th Circuit’s chief judge, Mary Schroeder, as saying she was “very surprised and concerned when I learned all three judges were on video” for the oral argument. Schroeder went on to say, “That was a first. Several other judges are concerned as well, and we are going to have a full discussion as soon as we can. I don’t think this is going to happen again.” I, too, prefer to have judges physically present for oral argument instead of participating remotely via video or telephone hookup, and I have never argued a case where more than one of the appellate judges was participating from a remote location. Nevertheless, I do not believe that the 9th Circuit has any reason to feel ashamed that none of the three judges assigned to decide Cooper’s latest appeal was in the courtroom for the oral argument. THEY ASKED QUESTIONS As best as I can tell, the argument came before a panel that was not otherwise hearing oral arguments together during the week that the case was argued. I presume that Rymer could have presided in person had the argument been scheduled in Pasadena, where the 9th Circuit regularly hears oral arguments, but perhaps doing so would have been far less convenient for the attorneys arguing the case. Had these three judges traveled to San Francisco, they would have incurred transportation and hotel costs and each easily consumed a good portion of a day in transit for a single oral argument that took just an hour to complete remotely, rather than devoting that time to this and other cases, including other death-penalty cases presumably pending before them. I’ve listened to the 9th Circuit’s audio recording of this argument, which can be freely accessed online (in Windows Media format). The three judges all actively participated by asking questions of counsel. Indeed, from listening to the recording, it’s hard to tell that the two judges who appeared via videoconference weren’t in the courtroom in San Francisco. The audio tape allows a listener to notice that one judge took part by phone, but she, too, participated actively in the oral argument. Therefore I can’t fault the three judges for deciding that their time would be better spent working from their home chambers. BASKETBALL FIRST? The Los Angeles Times article does contain one bit of troubling news. According to the article, “in recent months, an increasing number of 9th Circuit judges have invoked their privilege of appearing via video, even when they did not have a compelling reason. . . . Two judges on the court took particular umbrage at a colleague who they said had recently informed the court that it would be inconvenient to attend arguments because they would conflict with a child’s basketball games.” Now I enjoy attending sporting events in which my child is participating as much as the next parent, and when my work takes me out of town on a day when my child has a game, I’m saddened to be unable to attend. Yet serving on the 9th Circuit, which covers a huge geographical expanse, will by definition require a judge to engage in a great deal of travel to hear oral arguments. Presumably, the public shaming of this unidentified judge, who values being at childhood sporting events more than being physically present for oral arguments, will cause that judge to rethink some priorities. At a minimum, one hopes the judge favors splitting the 9th Circuit into two or more smaller circuits, given that such a split will likely reduce the need for out-of-town travel. Holding a federal appellate argument at which none of the judges is in the courtroom is very unusual, and in a death-penalty appeal it may understandably strike some people as astounding. But judges have an overarching duty to try to do what will best serve the interests of justice in all the cases pending before them — not merely one case. For this reason, I cannot fault the 9th Circuit judges who decided to remain in their home chambers instead of traveling to San Francisco to hear one hour of oral argument in a single case. There’s no lack of reasons for criticizing the 9th Circuit, but this isn’t one of them.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. His appellate blog appears at howappealing.law.com.

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