I have been asked how the panel of three judges of the Ninth Circuit Court of Appeals who will decide on the Government’s motion tonight has been selected.

The answer is that these panels are selected at random. There is a motions panel that is announced at the beginning of each month, and that panel rules on all motions, unless one or more of the judges is recused or is otherwise unavailable, in which case replacements will be selected at random.

The motions panels are selected at random at the beginning of the year, but their identity is not disclosed until the beginning of each month. This month’s motion panel was announced in another part of the court’s website, and these are the judges who will hear this motion.

Since they are based in Phoenix, San Francisco and Honolulu respectively, and the Government’s lawyers will be in Washington DC, it is hardly surprising that the hearing will be by telephone conference (with the live audio stream I mentioned in my third blog): I do not know where the States’ lawyers will be speaking from: Seattle, perhaps.

A good deal of angst is being stirred up over here about the movement towards hearings at a distance for applications like these, but so long as the technology and the court staff responsible for it are all fit for the purpose, this example (if it works) will be a good illustration of some of the benefits that are to be gained from moving with the times.

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