As the Federal Circuit temporarily moved to telephonic oral arguments, the court also began denying more oral argument requests after deciding that “oral argument [are] unnecessary.” In denying oral arguments, the court has generally been citing Fed. R. App. P. 34(a)(2)(C) which allows an assigned appellate panel to decide that oral arguments are not needed based upon a determination that “(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” The decision to deny a request for oral arguments must be unanimous.
The Federal Circuit recently completed its April sitting and I used the oral argument schedule to create the chart below. The chart below shows the percentage of cases with oral arguments for each Judge. Chief Judge Prost heard the highest percentage of oral arguments while Judges Lourie and Hughes were on panels that cancelled all of their oral arguments. One interpretation is that Chief Judge Prost sees oral arguments as more important for her decisional process, while Judges Lourie and Hughes find less importance. Although the number of cases was small (10 to 20 per judge), the dramatic shift in distribution is unlikely due to chance.
One thing to recognize here is that the R.34 standard did not change because of COVID-19 and the National Emergency. What did change is the mechanism for oral arguments and potential emergency pressures on various judges. These issues might explain the differences in judicial rates more than whether a judge “cares about oral arguments.”
Moving forward we are going to see lots of results from the “natural experiment” created by the COVID-19 National Emergency and Global Pandemic. While the results may end up being interesting and teach us something, the nature of this experience probably includes too many confounding factors to provide real results.