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Even As SCOTUS Denies Same-Day Audio, Other Appeals Courts Look to Modernize

Even as the Supreme Court has yet again denied a same-day audio request from Fix the Court (SCOTUS “will follow its usual practices regarding the posting of the oral argument audio for Trinity Lutheran,” wrote PIO Kathy Arberg on Wednesday) and refuses to acknowledge that age is more than a number, officials from federal circuit courts are now considering implementing real-time access for argument audio and judicial wellness policies that promote cognitive health in aging judges.

Sixth Circuit Clerk Debbie Hunt told Fix the Court that after she received our March 27 letter calling for live audio in circuit courts nationwide, she “asked the IT staff to give [her] technical information” on what a policy upgrade to live audio would entail. Eighth Circuit Clerk Michael Gans said he spoke with Chief Judge Lavenski Smith on March 29 about live audio and that Smith “has asked for some technical information to be developed,” with Gans adding that the issue will likely be on the agenda at their next circuit-wide meeting in September.

Clerks in the FirstFifth and Tenth Circuits all said they would pass FTC’s live audio recommendations to their chief judges, and the Second and Third Circuits responded to our request by simply restating via e-mail what their current broadcast policies are – which are still more modern than that of the high court.

“Lower courts look to the Supreme Court for how to apply precedent and decide cases, but the justices should also be setting the tone for how the judiciary conducts itself in terms of openness and accountability – tasks at which the high court has failed miserably,” FTC executive director Gabe Roth said. “Thankfully, many circuits are taking the initiative to modernize on their own, whether by implementing more contemporary broadcast policies or by initiating programs to ensure that life-tenured judges are working at full mental capacity.”

The same week that FTC sent letters to clerks inquiring about live audio the organization sent letters to circuit executives asking if their jurisdictions maintain judicial wellness programs to promote cognitive health.

The Third and Fifth Circuits reported that they have each recently created anti-aging programs, and their correspondence with FTC appears to be the first time either circuit has made the programs’ existence public.

According to CE Margaret Wiegand, “The Third Circuit has a Judicial Wellness Committee,” though she declined to give further details, and CE Ben Anderson told FTC, “The Fifth Circuit Judicial Council established a wellness committee and a model plan for [lower] courts” in 2016, though the plans and the committee charter will remain “internal documents […] not available outside the courts.”

Meanwhile, other circuits said they were considering forming a wellness committee or are employing other informal methods to promote cognitive well-being. “We are studying the [health] issue,” CE Clarence Maddox of the Sixth Circuit wrote in an e-mail. “Thanks for your inquiry.”

“The First Circuit Judicial Council is presently discussing the formation of a ‘wellness committee,’ which will address the issues you have raised,” CE Susan Goldberg wrote. “I expect to have more details regarding that committee after the next meeting […] in May.”

CE Collins Fitzpatrick told FTC that the Seventh Circuit does not have a formal wellness committee, but the cognitive health of judges “is very important to us” and is often discussed when the circuit hosts bar associations and legal conferences. “It’s also raised with clerks at the beginning of their terms,” Fitzpatrick added.

The D.C. Circuit may have been the first to act following the 2006 Breyer Committee report, which recommended “informal efforts,” like wellness committees, to “deal with difficult problems of judicial misconduct and disability,” including mental decline. According to CE Betsy Paret, “In response to the report, the circuit chief judge and district chief judge created the Advisory Committee on Judicial Conduct in 2007 to serve […] as a vehicle for members of the bar to submit concerns anonymously. This model works well in our circuit, which is [all] located in one courthouse. Everyone sees and interacts with all the judges in our courts on almost a daily basis.”

Fix the Court’s March 29 aging letter noted that while the Ninth and Tenth Circuits have created wellness programs to promote cognitive health in their judges, it was unclear whether any of the other circuits have, as well. The Judicial Conference last year declined to create a nationwide program to foster cognitive health. With long-term vacancies and longer life expectancies conspiring to increase the average length of federal judicial service and, with it, the potential for cognitive impairment, FTC believes that appeals courts should be ensuring, via specific programming, that its judges are holding their offices while operating at full mental capacity.

The March 27 live audio letter asked the clerks of the First through Eighth, Tenth, Eleventh, D.C. and Federal Circuits to livestream argument audio in their most closely watched cases. In addition to the travel ban EO, the constitutionality of the CFPB, the validity of certain voter ID laws, a number of bathroom bills and the routes of multi-state pipelines are all issues that are expected to be argued in circuit courts later this year.

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