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Congress moves closer to allowing cameras in federal courts

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Ever since the late Chief Justice Warren Burger said more than 20 years ago that cameras would enter the Supreme Court “over my dead body,” the campaign for broadcast access to the nation’s highest court has seemed like one of Washington, D.C.’s most quixotic quests. When Justice David Souter repeated the Burger threat nine years ago, the uphill climb grew even steeper.

But now, almost without warning, the climate has changed to the point where it is possible to imagine, sometime in the next few years, Supreme Court oral arguments on the air, on cable, and even — why not? — on podcasts, DVDs or whatever the next big media thing might be.

At a Senate Judiciary Committee hearing Nov. 9, Chairman Arlen Specter, R-Pa., said it was “a question of when … not if,” and Sen. Charles Schumer, D-N.Y., said “this is the year” to pass a law allowing broadcast access to the Supreme Court. They are co-sponsors of S. 1786, a bill that would permit televised coverage of Supreme Court proceedings unless a majority of justices, in a particular case, vote no. A few hours after the hearing, the House of Representatives passed H.R. 1751, a broad bill that included a provision allowing — not requiring — judges in all federal courts to permit broadcast coverage.

So why the shift? Several factors seem to have come together to make Supreme Court broadcast coverage seem possible — though not a certainty. Among them:

  • Being in the news: Beginning with the July 1 announcement that Justice Sandra Day O’Connor would retire, followed by the nomination of John Roberts, the death of Chief Justice William Rehnquist, the renomination of Roberts to the chief justice position, the nomination of Harriet Miers, her withdrawal, and then the nomination of Samuel Alito Jr., the Supreme Court has been front-page — and broadcast-news — fodder for months. And yet, as several witnesses mentioned at the Senate hearing, there is the realization that once all the nomination business is settled and the nominees begin their public service as justices, they “disappear from view,” as Barbara Cochran of the Radio-Television News Directors Association put it. The irony — or perhaps the absurdity — of that contrast is sinking in.

  • Congressional chutzpah: Bills favoring cameras in the federal courts have been proposed many times in the past, but Congress seemed cowed by the opposition — sometimes vocal, sometimes behind the scenes — from the federal judiciary itself. Some judges even dropped broad hints that such a law might be an unconstitutional violation of the separation of powers. But Congress seems to have gotten over its timidity; Specter himself said, without hesitation, that if Congress has the power to establish how many justices the Supreme Court has, and when the Court begins its term — both the subject of legislation — it can certainly mandate broadcast access to its proceedings.

    More broadly, though, members of Congress have made their oversight of the judiciary more muscular in recent years than ever before, on everything from sentencing guidelines to judicial training junkets sponsored by interest groups. It is not a stretch to fit the push toward camera access into this trend, in the sense that with cameras inside the courts, public oversight of the judiciary will increase, as well.

    But Congress is in danger of overplaying its hand. Specter, at the hearing last week, invoked his longstanding anger at the Supreme Court for cavalierly overturning acts of Congress, and suggested that camera coverage would produce “legitimate pressure” on the Court to show more respect for the legislative branch. If the threat of camera access is used as a blunt instrument for punishing the Supreme Court, it will surely generate a backlash from those who will say it threatens judicial independence.

  • Reap what you sow: When they argue against camera coverage, Supreme Court justices always say that they are not supposed to be visible media celebrities or objects of media attention. Yet they have been more visible in recent years off the bench, most often when they have books to promote. C-SPAN CEO Brian Lamb said at the Senate hearing that only Justice David Souter flatly refuses to allow camera coverage of all of his public appearances — though he does not make many appearances to begin with. Justice Antonin Scalia will often threaten to walk out of public appearances unless the cameras leave, but even Scalia accepted coverage this year of a dialogue he had at American University with Stephen Breyer on the use of international law, and a three-way conversation with Breyer and Sandra Day O’Connor sponsored by the National Constitution Center.

    Scalia even served as grand marshal of New York City’s Columbus Day Parade last month — not exactly consistent with the model of the invisible judge that he has advocated for years. With all this off-bench visibility, it has become harder for the Court to make the case that it should be out of public view when it is doing the public’s business.

  • Strategy: Chances of bringing cameras to the Supreme Court may improve if that policy is isolated from what some view as the more difficult question of allowing cameras into lower federal courts, especially trial courts. At the Judiciary Committee hearing Nov. 9, senators also considered S. 829, which would permit broadcast access to all three levels of federal courts — but solely at the discretion of the presiding judges. That is similar to the bill the House approved. Senators voiced concern about possible juror and witness intimidation if criminal trials are open to broadcast. But little opposition was heard at the hearing to broadcast of Supreme Court or appellate court hearings.

    In the face of this growing momentum toward camera access, Supreme Court justices seem almost quaintly determined to hold to their old positions. At an American Bar Association symposium yesterday on the international rule of law, O’Connor, Breyer and Anthony Kennedy were drawn into discussing their own views about cameras in the courts. They recalled with displeasure the televised trial 10 years ago of O.J. Simpson. O’Connor did not use his name but described him as “a prominent sports figure” and said the trial was “very sad,” according to an Associated Press account.

    Kennedy acknowledged the arguments in favor of camera access, but said the high court should be judged by its opinions. And Breyer said the Court was in no hurry to do something that could damage the institution, adding that more study was needed. Much research has already been done and published on the impact of camera coverage of court proceedings where it has been allowed, but Breyer seeks more.

    But their cautionary words may be coming too late. At the Senate hearing, ranking Democrat Sen. Patrick Leahy of Vermont said, “The time is ripe ... . We should use the technology available to this generation to give even greater effect to the guarantees of [the First] Amendment and the free and open government it facilitates. It is time to let the sunshine into our federal courts.”

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    Cameras in the courtroom

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