Washington — Sen. Charles Grassley (R-Iowa) has
teamed with Sen. Dick Durbin (D-Ill.) to introduce the Cameras
in the Courtroom Act of 2011, the latest effort to get cameras
inside the U.S. Supreme Court.
It follows by only a few weeks a request by C-SPAN to
cover the appeal of President Obama’s health-care reform law.
The Grassley-Durbin legislation would require TV coverage
of all open sessions of the High Court unless the majority
of justices decided that “doing so would constitute a violation
of the due process rights of one or more of the parties before
the court.”
A similar bill was approved by the full Senate Judiciary
Committee in the last Congress.
DECADE-LONG EFFORT
Grassley has been pushing to open the high court up to cameras
for more than a decade. He said at a hearing on the bill
last week in the Senate Subcommittee on Administration,
Oversight and the Courts that his push stemmed from the
audiotapes of the Bush v. Gore oral argument that were released
after he and others pressed the court to broadcast the
proceedings live.
Grassley called that release a sign of progress. He noted as
further progress the court’s decision last year to start releasing
audiotapes regularly at the end of each week — they had
previously only been available at the end of each term. “But it
is not enough,” he told the committee. “I believe that the nature
of our government and
the fundamental principles
upon which it was built require
more.”
Similar bills have failed in
the past in the wake of opposition
by some justices and
concerns over separation of
powers. One alternative suggested
last week, short of a bill,
would be a resolution urging
the court to open itself up to
cameras, instead of a congressional
mandate to the court.
Grassley wrote to Chief Justice
John Roberts last month,
urging him to permit cameras
for the debate over the Obama
health-care law.
Subcommittee chairman Sen. Amy Klobuchar (D-Minn.),
a former prosecutor, said she has supported efforts to open
up all courts to cameras, but said she recognizes some issues
with opening up lower trial courts.
Taking the other view, ranking member Sen. Jeff Sessions
(R-Ala.) said one of the court’s strengths was that it was removed
from the “hustle and bustle” of everyday life. He said
the decision is what’s important and it speaks for itself.
Sessions said the judges’ visage or personality is not what
the court is about. He said to the extent that cameras undermine
the sense of objectivity and cause a court to be perceived
more as a policy or political entity, the court’s moral authority
would be, perhaps, slightly reduced. “To the degree our
judges worry about that, I think we should give them deference,”
he said.
Speaking for himself at the hearing, and not for the court,
Judge Anthony Scirica of the 3rd U.S. Circuit Court of Appeals
— familiar to broadcasters from that court’s media-ownership
and indecency decisions — argued that Congress should
not mandate cameras for a co-equal branch of government.
That would likely raise constitutional issues related to separation
of powers, he said.
“Justices take an oath to ‘faithfully and impartially discharge
and perform all
the duties’ of the office.
It is not unreasonable
to defer to the Court on
how it conducts its deliberations
and speaks
to the American people,”
Scirica said.
Scirica pointed out
that judges sometimes
ask tough, provocative
questions to test arguments
(one reason
it is sometimes tough
to gauge how judges
might rule from their
questioning). “In a highprofile or especially sensitive
case, some might
view a judge’s question
as revealing bias or a closed mind unreceptive to a party’s
position, creating the impression that the judge is not neutral,
not fair. Because of these concerns, I have sometimes
trimmed my sails when asking questions in these high-profile cases. Cameras would likely augment this problem.”
Scirica said the court had already become more transparent,
pointing to the weekly release of audiotapes and the
same-day posting of decisions and oral arguments on its website.
He also pointed out that the justices speak, teach and hold
moot courts, and that all recently
gave televised interviews
to C-SPAN.
“A court that is charged
with the duty under our constitution
to ‘say what the law
is,’ that has merited the confidence
of the American
people, and that has made
its processes ever more accessible,
should be afforded
deference in its own governance,
including the decision
whether, when or how cameras
should be present during
its oral arguments,” he said.
But C-SPAN is not satisfied
with talking to the justices. It
also wants the public to see them in action.
C-SPAN in October beat Grassley to the punch of asking the
court to allow it to televise oral arguments in the challenge
to the president’s health-care reform law, also likening it in
importance to the Bush v. Gore case in 2000, when the court
agreed to the release of same-day audiotapes of the argument.
In a letter to Roberts last Tuesday (Dec. 6), copied to the other
justices, C-SPAN said it would provide the live feed to other
media outlets that want it. C-SPAN pointed to the fact that
the court was planning five and a half hours of argument as
a sign of the significance of the case, and pitched the request
as a “supplement” to the court’s regular end-of-the-week audiocast
release of arguments and as a further refl ection of the
importance of the case.
In case the obtrusiveness of the cameras is an issue —
which has been raised by some justices in the past — C-SPAN
pledged to work with the court to make sure the equipment
was “unobtrusive and respectful of the process.”
C-SPAN Networks vice president Peter Kiley told Multichannel
News last week that the court had not responded to its request.
Also weighing in for cameras last week at the hearing was
Tom Goldstein, partner in Goldstein & Russell and publisher
of SCOTUS blog, regarded as indispensable for court watchers.
While Goldstein also
recognized the court’s
efforts to make information
more accessible, he
said barriers remain to a
truly public process and
that “allowing cameras
inside the courtroom
is the next logical step.”
He called televising and
webcasting court proceedings
“a tremendous
vehicle for public accessibility.”
“Broadcasts of court
proceedings will reach
segments of the public in
a way that transcripts and
audio recordings cannot,”
Goldstein argued.
“There cannot be any serious dispute that whereas at most
a few hundred thousand people (almost all lawyers) will read
the court’s opinion or oral argument transcript in the healthcare
cases, tens of millions of ordinary Americans (at the very
least) would watch all or part of the proceedings in the case
with great interest,” he sadded.
Goldstein pointed out that the 9th and 2nd Circuits currently
televise proceedings and, if there had been problems,
“we would know it.”
Scirica later noted that was only two of nine circuit courts.
He said that although the 9th Circuit allows cameras a great
deal of the time, the 2nd Circuit does so very infrequently.
“At a time when public confi dence in government is flagging,
this is a tremendous opportunity for the court to use this
technology as a vehicle to re-energize public faith in our democratic
system,” Goldstein said, adding that the critical point
for him was that the court proceedings were public. He said
he thought the legislation would hold up if it were challenged
in court, since it is directed toward public, not private, proceedings.
SPECTER URGES ‘SUNLIGHT’
Former Sen. Arlen Specter of Pennsylvania, an ex-district
attorney who was a leading voice for cameras in the courts,
was also a witness. He said the public benefit of an informed
public and a transparent process “vastly” outweighs the
“collegial dynamics” of the court.
“I believe that if the court were televised, there would be an
understanding and an accountability,” Specter said.
He pointed to the high court’s “monumental” 5-4 decision
in Citizens United, which allowed unlimited, anonymous
corporate expenditures. He said the court in the case
ignored a 100,000-page record and “literally yanked the
rug out from under Congress.” He said nobody really understands
what is happening in these cases, and it is hard
enough to convey even if they were televised, but at least
that would be an “enormous” start.
“Sunlight is the best disinfectant,” Specter said, echoing a
phrase he used in his own decades-long push for legislation.
He opined that the full judiciary committee, of which he
is former chairman, three times reported a similar bill out
of committee to no avail.
