Ready for Their Close-Up? Ideological Cues and Strategic Televising in the Ninth Circuit Court of Appeals

Abstract

Federal judges offer several stated purposes for pursuing greater publicity in the judicial process, including improving the quality of reporting and educating the public. They are less candid about other goals that influence steps they take as they shape how they are perceived, including strategically using publicity to secure others’ compliance, neutralize policy disagreement, or build legitimacy. Despite these judicial goals, scholars of American politics know little about how federal judges shape the public’s perceptions. We leverage a notable exception to federal judges’ aversion to publicizing their proceedings by analyzing how Ninth Circuit appellate judges respond to media requests to televise oral arguments. We find that the televised representation these judges present to the public is a selective one: decisions to televise appear to be motivated by portraying unanimity, while at the same time avoiding the spread of perceived politicization among the public. These results shed much-needed light on how federal judges navigate a publicity-politicization tradeoff through their strategic use of televising.

Keywords:

• Televised oral arguments
• ninth circuit
• transparency

Acknowledgments

We would like to thank Matthew Morrow for research assistance. For invaluable feedback, we would like to thank Brandon Bartels, Ryan Black, Lee Epstein, Daniel McCormack, Michael Nelson, Emily Ritter, Michael Salamone, Amanda Savage, Rorie Solberg, Joseph Smith, and many others.

Notes

1 449 U.S. 560 (1981), holding that a state can allow broadcast recording and still photograph coverage of criminal trials.

2 According to PEW Charitable Trusts, “Colorado became the first state to allow news media photographers in 1956” (Walker 1999).

3 Figure 2 depicts the steps of this process in greater detail along with the information available to and potential motivating factors for panel judges at each stage. Prior to the appellate hearing, the panel judges are aware of two crucial features of the case at hand: the ideological distance among the panel judges and the ideological preferences for courts with supervisory review (i.e., the circuit at large and the Supreme Court). Armed with that information, we argue, judges will either approve a televising request to serve the function of effectively publicizing the court or they will deny the request to protect the court’s image. In this way, ideological distances serve as a vital informational shortcut, helping judges navigate the publicity-politicization trade off for televising.

4 According to a report by the Congressional Research Service, this decision is made by the circuit’s judicial council, “consisting of the chief judge of the circuit and an equal number of court of appeals and district judges from that circuit” (Tong 2006, 4).

5 It is plausible that judges with a large number of opportunities (e.g., Judges Thomas Nelson and Diarmuid O’Scannlain had 16 and 15, respectively) benefited from media outlets targeting particular judges. However, the number of opportunities a judge receives seems to be driven by tenure: including the five judges who had zero opportunities, the correlation between a judge’s number of years active on the Ninth Circuit prior to taking senior status and the number of opportunities is.67 (N = 46). This supports our conclusion that media outlets and judges seem to disagree about what they wish to see televised. We find no evidence that a media outlet’s request that a case be televised is informed by the identity of the panel judges announced for a case. However, it is the identities of other judges that appear to be a main factor in a panel judge’s decision whether to grant the media’s request.

6 As discussed above, there are images judges would like to promote, including those that educate the public and improve reporting. We limit the scope of our analysis to exploring how cues help judges avoid images they do not want to project.

7 (Posner 2000, 719) reports indirect evidence of the relationship between collegiality and case outcomes when he shows that the rate of summary reversals by the Supreme Court exceeds what can be attributed to the Ninth Circuit’s size: it stands to reason that such obviously incorrect decisions could be avoided if the judges knew their panel colleagues better to rely on their input.

8 Wasby (1988) provides insight into the role of an earlier emergent technology on the Circuit: email. Email came to the Circuit in the early 1980s as a solution to perennial caseload-management issues (4). This objective distinguishes the purpose of email from those of permitting media outlets to request televising (e.g., education of the public). Nevertheless, the Circuit’s experience with the earlier technological innovation reveals a dearth of collegiality to be a concern among the judges. Drawing upon extensive interviews with the judges, Wasby notes, even in the Eighties, that size meant that email’s “considerable reduction in the time necessary for transmission of written material can help serve to hold together a large body of judges and increase their ability to function as ‘one court’” (27).

9 The Ninth Circuit’s Guidelines for Photographing, Recording, and Broadcasting in the Courtroom stipulate that media requests “to broadcast, televise, record electronically, or take photographs at a particular session” must be made no fewer than three business days prior to oral arguments. Our data indicate eight requests that were not honored because they were submitted too late or oral arguments were canceled.

10 Little is known about how oral arguments affect decision making. According to Johnson (2017), due to data limitations on oral arguments in the circuits, “there has been virtually no study of how these proceedings affect the decisions circuit court judges make” (194).

11 In a subsequent article, he updates these numbers slightly: 217 eligible requests and 144 grants (66.4%) (O’Scannlain 2007, 325). The available data do not include these additional 12 requests.

12 We think this high rate of district judge participation in the O’Scannlain sample is likely due to a small sample. Nevertheless, it does call into question any relationship between pivotal judges’ identities and newsworthiness.

13 We have omitted criminal cases because these are rare in the sample of media requests (only two cases were coded as Criminal by APPTYPE). According to Tong (2006, 5), “the Ninth Circuit permits cameras in civil proceedings (including habeas corpus cases), but prohibits cameras on direct appeals of criminal cases.” We also note that criminal cases are atypical compared to other cases, given the “fact that the courts of appeals overwhelmingly affirm criminal appeals, resulting in conservative outcomes” (Calvin, Collins and Eshbaugh-Soha 2011, 741). We include the two Criminal (by APPTYPE) cases in our statistical analyses, but our statistical results are robust to their exclusion.

14 We exclude cases where panels featured judges without circuit court experience (e.g., district court judges) and those with 11 judges hearing the case en banc. This eliminates more than 40 cases. However, we believe that it is appropriate because panel dynamics are quite different outside of panels of three circuit court judges. For instance, visiting district court judges are less likely to dissent (Hettinger et al. 2006), while dissent is quite common on en banc panels (Epstein, Landes and Posner 2013). We also limit our sample to cases where televising was requested and cases where the request was not later withdrawn or oral argument was not held.

15 These reports are issued quarterly, i.e., March, June, September, December. To maximize the data availability, we rely on the September reports, the first of which available online is from September 30, 1997. Available at https://www.uscourts.gov/data-table-numbers/b-1

16 The scope of this paper concerns the role of ideological cues on decision making. It is possible that other, non-ideological factors might have a systematic effect on the decision to allow televising. As a result, we cannot rule out entirely the possibility of omitted variable bias. We note that our results are robust to analysis of a second model that accounts for the potential confounding factors of issues (US and Prisoner).

17 See the appendix for a conceptual typology that organizes the circuit courts based on their policies and practices toward visual and audio publicity.

18 By way of comparison, the number of views on YouTube page for the United Kingdom Supreme Court was 2.1 million as of May 2022, despite the account being only 2 years younger than the Ninth Circuit’s.