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Fourth Circuit Hears Oral Argument on Transparency in the Intercircuit Assignment Process

By Tyler Cooper, FTC senior researcher, and Mia Dohrmann, FTC law clerk

The Fourth Circuit heard arguments today in the Roe v. U.S. sexual harassment case, 21-1346, on a motion to disclose public records from the intercircuit assignment process.

Jeannie Suk Gersen, representing Roe at the proceeding, pushed the court to remedy the appearance of impropriety caused by the prospect that the defendants in the case may have played a role in choosing the panel of judges hearing the case.

Opposing the motion was the judiciary, represented by Justice Department, whose attorney claimed that a potentially cascading number of AO recusals during the assignment process would significantly disrupt the administrative structure, that the panel was chosen by a “staffer” based upon availability and caseloads and that he did not believe there were more documents related to this process that could be disclosed.

Whether or not there was actual bias or favor to the defendants should not be considered relevant to the question here. The appearance of impropriety is something that judges must treat just as seriously as actual impropriety.

Although the judiciary often seems to disagree, sunshine continues to be the best disinfectant, and further disclosures here related to how this panel was determined could quash the concerns we and others have had over the intercircuit assignment process and show that the judiciary fairly handled this matter.

Providing the public with an inside look as to how these assignments get made would also likely prove to strengthen the public’s faith in the overall integrity of the third branch, which should be welcomed at a time when public scrutiny of the judiciary is on the rise.

Oral argument on the merits of the case are scheduled for Feb. 7.

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