Good morning, ladies and gentlemen. The Judiciary Committee will now proceed on our hearing on cameras in the courtroom. The Ranking Member will be joining us very shortly.
This is a subject of enormous importance to the American people on the basics of understanding how the Government functions. Sen- ator Grassley, who is our lead witness today, has had legislation pending on cameras in the courtrooms of the circuit courts and the district courts, and I have had legislation pending since 2005, for some 5 years, to open up the Supreme Court of the United States to cameras.
The Supreme Court, as our system of Government has evolved, is deciding the cutting-edge questions of our day, decisions on who will live and who will die, what is the power of the President, what is the relative power of the Congress, whether marijuana may be used for medicinal purposes, where the balance will lie in a wom- an’s right to choose, what DNA evidence may be used to exonerate the innocent. The whole range of cutting-edge questions have been left really to the Supreme Court of the United States.
In the year 2000, the Court in effect decided who would be the President of the United States. There was the largest array of tele- vision truck that I have ever seen—and I have seen assemblages of television trucks—in front of the Supreme Court building when that case was decided. And it was, I thought, most unfortunate that the cameras were not allowed inside so that the American peo- ple and the people of the world could see precisely what was going on.
At that time, Senator Biden and I had written to the Chief Jus- tice urging that the case be open to television. The Chief Justice declined. They did release an oral transcript shortly after the hear-
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ings ended, and that was illuminating, but far from what would have been apparent had cameras been in the courtroom.
The House of Representatives and the Senate have been tele- vised now for decades. And I think at the outset there might have been some grand-standing, so to speak, but it has been an enor- mously useful tool for public understanding as to how the Congress works.
The hearings of the House and Senate have long been televised. The comments that I hear most frequently about television relate either to the NFL, the World Series or C–SPAN, and late-night viewing is practically captured by C–SPAN.
It is my thinking that the Congress has the authority to legislate on cameras in the courtroom for the Supreme Court. The Congress makes the determination as to how many justices there are on the Court. The Congress makes the determination of what is a quorum for the Court. The Congress makes the determination for when the Court will begin its session on the first Monday in October. The Congress has imposed time limits for the Supreme Court. And by analogy to those lines, I think it is fair for the Congress to legislate in this field.
Obviously, if the Supreme Court decides as a matter of separa- tion of powers that it is not a Congressional prerogative, we will not petition for a rehearing. That will be the judicial decision which we respect since Marbury v. Madison.
We have a distinguished array of witnesses today. Our lead wit- ness is Senator Charles Grassley, the senior Senator from Iowa. He came to the U.S. Senate in 1980, a banner year for Republicans. Some 16 Republicans were elected that year, and two of them were Charles Grassley and Arlen Specter, and the only two survivors are the two of us.
Senator Grassley was once analogized—I am going to be a little more liberal with the time, since no other Senator is on the panel. I usually stop promptly with the red light. Senator Grassley was analogized or compared to President Harry Truman as being very plain-spoken. The expression was ‘‘horse sense,’’ and with Senator Grassley’s background as a farmer, he took it as a compliment and it was intended as a compliment. And I can say that with some cer- tainty because it was my statement about Senator Grassley.
Welcome, Senator Grassley. You are a distinguished member of this Committee, you are a distinguished member of the Senate, and we look forward to your testimony.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA
Well, thank you very much for giving us an opportunity to speak about openness in our courts. As you know, I have long championed this, most recently with Senator Schumer, going way back to the 106th Congress when we first introduced the sunshine bill. Over the years, it has enjoyed bipartisan cosponsor- ship, and we have had the opportunity of getting our bill out of this Committee three times since that 106th Congress.
Just a couple of months ago, the new Chief Justice testified be- fore our Committee about this issue when I and several members asked, and he seemed to have a great deal of open-mindedness on
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this subject. Today’s hearing, I hope, will help him with facts need- ed to make decisions to open the Supreme Court, as well as other Federal courts, to cameras. As you know, the House Judiciary Com- mittee just passed out by a vote of 20 to 12 a House companion that was introduced by Congressman Chabot.
The Grassley-Schumer bill will give Federal judges the discretion to allow for photographing, electronic recording, broadcasting and televising in Federal courts. The bill will help the public become better acquainted about the judicial process, produce, I think, a healthier judiciary, increase public scrutiny, bring greater account- ability, and I think help judges to do a better job. The sun needs to shine in on the Federal courts.
In this room, we often talk about the intentions of the Founding Fathers. I think allowing cameras in the Federal courtroom is abso- lutely consistent with their intent that trials be held in front of as many people as choose to attend. I believe the First Amendment requires court proceedings to be open to the public and, by exten- sion, news media.
As the Supreme Court articulated in 1947, in Craig v. Harney, quote, ‘‘A trial is a public event.’’ Another quote: ‘‘What transpires in the courtroom is public property.’’ The Supreme Court stated in its 1980 ruling in Richmond Newspapers, ‘‘People in an open soci- ety do not demand infallibility from their institutions, but it’s dif- ficult for them to accept what they are prohibited from observing.’’
Beyond the First Amendment implications, enactment of our bill would assist in the implementation of the Sixth Amendment’s guarantee of public trials in criminal cases. In its 1948 Oliver opin- ion, the Supreme Court said, quote, ‘‘Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instru- ments of persecution.’’ The Court stressed that, quote, ‘‘The knowl- edge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power,’’ end of quote. Louis Brandeis captured it better by saying ‘‘Sunshine is the best disinfectant.’’
During this morning’s hearing, we are going to hear from oppo- nents. Much of their opposition is based on speculation and false assumptions. The criticism ignores the findings of at least 15 State studies and a large Federal pilot program.
The widespread use of cameras in State court proceedings shows that still and video cameras can be used without any problems and that procedural discipline is observed. All 50 States allow for some modern audio-visual coverage of court proceedings. My own State of Iowa has done this for almost 30 years.
There are many benefits and no substantial detriment to allow- ing greater public access to the inner workings of our courts. Fif- teen States conducted studies aimed specifically at the educational benefits derived from cameras. They all determined that camera coverage contributed to greater public understanding of the judicial process.
Further, at the Federal level, the Federal Judicial Center con- ducted a pilot program in 1994 which studied the effects of cameras in selected courts. That study found, quote, ‘‘small or no effect of
camera presence on participants in the proceeding, courtroom deco- rum, or the administration of justice,’’ end of quote.
However, in order to be certain of the safety and integrity of our judicial system, we have included a 3-year sunset. It is also impor- tant to note that the bill simply gives judges the discretion to use cameras in the courtroom. It does not require the judges to do that. The bill also protects anonymity of non-party witnesses by giving them the right to have their voices and images obscured.
So this bill doesn’t require cameras, but allows judges to exercise their discretion to permit cameras in appropriate cases. I think it guarantees safety for our witnesses and doesn’t compromise that safety. So I hope we can pass it out of our Committee once again, Mr. Chairman.
[The prepared statement of Senator Grassley appears as a sub- mission for the record.]
Thank you very much, Senator Grassley. We have been joined by Senator Sessions. Senator Sessions, would you care to make an opening statement? Senator SESSIONS. No, Mr. Chairman. I just would say that I
chair the Administration and Courts Subcommittee and I have given a lot of thought to this. I think we need to go carefully here and I am looking forward to the panel and discussing the issues.
Thank you very much, Senator Sessions.
We now turn to another distinguished member of this Com- mittee, Senator Charles Schumer, from the State of New York. Senator Schumer went directly from the Harvard Law School to the New York Assembly and then directly to the U.S. House of Representatives, and then in 1998 was elected to the U.S. Senate, much to the dismay of his parents, as he has told the story, right from law school to public service without any intervening big bucks.
Chuck Schumer is dedicated to public service in a big way. He has run into big bucks, however, not for himself personally, but in his prodigious fundraising capabilities. He can give tips to all of his 534 colleagues on television access. May the record show he is nod- ding in the affirmative.
We find him to be very, very active and a great contributor to this Committee and we welcome him here this morning for his tes- timony.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Well, thank you, Mr. Chairman. I appreciate your, I guess, kind introduction and am honored to serve with you. I would note two quick things. I came to the Congress in 1980. You mentioned, I think, 16 new Senators. I was one of seven freshman Congressmen from New York, a Democratic blue State, six Repub- licans and myself. And I think I am—let’s see—yes, I think I am the only one who is still there, too, just as you and Senator Grass- ley are. The other thing that links Senator Grassley on this bill is we are the only two ‘‘Charles Es’’ in the Senate who are nicknamed ‘‘Chuck.’’
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Anyway, thank you, Mr. Chairman. I want to thank you and Senator Leahy for scheduling this hearing. It is an important hear- ing about people’s ability to participate in this great democracy.
Public interest in our court system is higher than ever, and that is a good thing because our democracy is stronger when participa- tion is strong. No branch of our Government has remained a great- er mystery to average people than our Federal courts, and that is a shame because the decisions of our courts and the judges who sit on them, judges who get a lifetime appointment, have tremendous consequences for everyday lives.
An example: No case has had a more profound effect on the lives of Americans as much as when the Supreme Court helped decide the Presidential election 5 years ago in Bush v. Gore. We all re- member that case. no matter what side you were on, you were riv- eted every step of the way. There was lots of concern then and there still is a lot of talk about that case now, but the Court real- ized that, and this is what is so interesting.
With Bush v. Gore, the Court also made history in one other way. For the first time in its history, the Court released an audio tape immediately after the proceedings. The tape was broadcast all over television and all over the radio. Millions of Americans lis- tened intently just to get a feel for what was going on inside the hallowed halls of the Supreme Court. And ask any one of them if they would have liked to have the opportunity to watch the pro- ceedings and the answer would have been an overwhelming ‘‘yes.’’
Well, if the Court did that in Bush v. Gore, a case very important particularly to people who care about politics, when they get a case on disability, there are people who care about that maybe more so. When they get a case on the environment, there are people who care about that. When they get a case on business law, there are business leaders who care about that.
I think the same standard ought to hold, and that is why I am proud to cosponsor a bill with my colleague, Senator Grassley. As he mentioned, we have worked on this a long time together and we have had some success in moving it out of this Committee. I think this is the year to make this law.
The reason for the bill is simple: it is openness. Courts are an important part of our Government. The more people know how gov- ernment works, the better. But the Federal Government, as has been mentioned, lags far behind the States. I want to give another example in my own home State of how openness worked.
We have allowed televised trials for decades. It has been a great success. The critics say, oh, the cases of strong passion will become circuses and everything else. Well, there was no case New Yorkers felt more strongly about than the case of Amadou Diallo. Four po- lice officers were eventually acquitted, but they were accused of shooting Diallo, a Nigerian immigrant, in cold blood.
Because the case got such wide concern, the venue was moved from the Bronx to Albany, but the judge wisely permitted live TV coverage. It allowed anyone who was interested to watch the entire trial, whether they lived in the Bronx, the neighborhood where it occurred, or elsewhere. The cameras were not disruptive. The law- yers acted professionally. The rights of witnesses were not cur-
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tailed. Witnesses and jurors were not in the room, and so it didn’t diminish the dignity of the court.
But at the same time, when the public—many people particularly in the African-American community were very upset about this and when they were able to watch the proceedings, most people agreed, whether they agreed with the outcome or not that the jury decided, that it was a fair trial. That wouldn’t have happened if we didn’t have cameras in the courtroom. For people to just read the news- paper accounts doesn’t give the same thing.
So this works. Allowing cameras into our courtrooms will help demystify the courts. Let the public evaluate how well the system works. Only then will the public really be able to decide based on facts and real knowledge what changes need to be made.
Finally, as Senator Grassley mentioned, there are instances where cameras are not appropriate and this bill takes care of that by granting discretion to the judge. We don’t really tie the judge’s hands on this even though, as you note, Mr. Chairman, we prob- ably could, although the court would have to rule on that ala Marbury v. Madison.
But if the judge thinks that televising a trial would be harmful— maybe he thinks it is unfair to the defendant, maybe there are pri- vacy concerns—the judge could ban it. It also allows witnesses to request, as was mentioned, that their voices and images be ob- scured.
So the risk here isn’t turning courtrooms into a circus or unduly invading someone’s privacy. The risk is the danger we pose to our society and our democracy when we close off our institutions to the people they are supposed to serve.
Thank you, Mr. Chairman. Chairman SPECTER. Thank you very much, Senator Schumer. I turn now to our distinguished ranking member, Senator Leahy. Senator LEAHY. Well, Mr. Chairman, I would just as soon wait
for Senator Grassley. Oh, you are done, OK. Well, then, I will speak.
Do you think we would call on Schumer be- fore Grassley?
[Laughter.] Senator GRASSLEY. I am sorry you missed it, too. Senator LEAHY. I know these two are not just two pretty faces;
they are here for substance. I didn’t realize Senator Grassley had already spoken. I was going to wait for him.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT
I am glad to see this hearing. I am the son of a printer. My parents not only had a printing business, but for a while ran a small newspaper. So I come by my affection for the First Amendment very honestly and directly. My father instilled in me the sense that the freedom of speech in the First Amendment is the foundation of this democracy. But it also assures that we will have access to our Government.
When I was a young man—actually, when I was a young pros- ecutor in Vermont, Vermont even then had this culture of open government. We could talk to our elected officials and meet with
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them on a regular basis. You can have balances for security, but there has to be this transparency. We have to know what is going on. A democracy works best when there is sunshine in government.
I think right now there is this dramatic shift toward secrecy in the government, and that is bad; it hurts the whole country. So we have to expand access to government for all Americans. I have tried to make all three branches of our Government more trans- parent and accessible. Congress and its committees, except for a rare secret session, are open and carried live on cable television, C– SPAN, and radio. Members and the committees use the Internet and the Web to let us know what is going on. The executive branch is subject to FOIA, the Freedom of Information Act.
We then have the third branch. Now, most judicial proceedings are open to those who can travel to the courthouse and wait in line and they can see what is going on. But emerging technology could invite the rest of the country into that same courtroom. You wouldn’t have to travel there. Whether I am sitting in my little farm house in Middlesex, Vermont, or somebody is in their office, anybody could be in that courtroom, with technology.
All 50 States have allowed some form of audio or video coverage of court proceedings, but the Federal courts lag behind. I have co- sponsored several bills to address this, including two bills currently pending—the one we have talked about, the Sunshine in the Court- room Act of 2005, and the Televising Supreme Court Proceedings Act with Senator Specter.
The First Amendment is one of those magnificent bequests to all Americans and we have to protect it for succeeding generations. It is a fragile gift; it needs nurturing and it needs protection by every new generation. Let’s use the technology available to this genera- tion to give even greater guarantees to that amendment and the free and open government it facilitates.
It is time to let some sunshine into our Federal courts. The Fed- eral courts are the bulwark for the protection of individual rights and liberties. The Supreme Court is often the final arbiter of con- stitutional questions having a profound effect on all Americans. Why not allow the public greater access to the public proceedings of the Federal courts? That is going to allow Americans to evaluate for themselves, ourselves, all of us, the quality of justice in this country.
They are there for all 280 million Americans. Let all 280 million Americans know what is going on. It can deepen the understanding of the work of the courts, but it can also deepen our understanding that it is our rights that are there being protected. It is a fas- cinating subject and it is time for this.
I remember when I first came to the Senate we did not have tele- vision. We brought in radio during the Panama Canal debates. Peo- ple tuned in throughout the country; they got involved. Then we added television. That was an interesting experiment, and some- times it has been good and sometimes it has been bad. Sometimes there has been posturing and sometimes there have been riveting matters. But the American people could see what they had a right to see if they traveled to Washington, stood in line and went in there. Well, I can see what goes on in my Federal court if I travel
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to the court, stand in line and go in there. I want to be able to see from wherever I am.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a submis- sion for the record.]
Thank you very much, Senator Leahy.
Just a question or two, Senator Schumer. Do you think that the presence of the cameras in the Senate has any significant effect on promoting grand-standing or hot-dogging among the Senators?
I really don’t. I think that the overall benefit of having C–SPAN, with millions of Americans watching—there are now call-in shows where people respond to what is going on— has been extremely salutary for our democracy. I think it is great.
That is the next question. What do you hear from your constituents about viewing C–SPAN and watching the Senate proceedings, and how much enlightenment does it give them as to what we are doing?
Mr. Chairman, I am amazed at how many people actually tune into C–SPAN and how often you hear it. I mean, maybe the average person doesn’t, but a large number of people do. And, again, it has demystified the Congress. It is dif- ferent having an intermediary tell you what happened through their eyes rather than seeing it through your own eyes. And what C–SPAN does and what cameras in the courtroom do is let anyone who wants to, as Patrick Leahy said, view it themselves.
How about the C–SPAN coverage of hear- ings? How many of your friendly insomniacs tell you that they saw you at 3 a.m. or at some other ungodly hour?
I agree. You hear about it all the time for hearings and for everything else. Have there been occasional times, I guess, when people might regret having C–SPAN in the Senate chamber and the hearings? Once in a blue moon, very, very rarely, and the benefit is every day, every minute.
The Chairman talked about the insomniacs at three o’clock, but they are making that choice to watch it.
You got it.
And I know the number of e-mails and letters I get even from a little State like Vermont from the number of people who watch. But doesn’t it also, though, come down again to if you have an interest in what is going on in that court, you can watch it?
You have been there for Supreme Court argu- ments, as I have. I am a member of the Supreme Court bar. Sen- ator Specter has argued cases there. We know that some of the cases can be awfully arcane. Fine, but the case that we may find arcane may have a very, very direct relationship to somebody else’s rights or interests. Why not be able to watch it?
And I again I come back to the point that if you can spend the money to travel to where the court is and stand in line, you might get in and watch it. It is an open courthouse. Why shouldn’t it be open to everybody?
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So, Mr. Chairman, I thank you for having these hearings, and I agree with Senator Schumer and I agree with you and Senator Grassley.
I thank the Chairman and, Senator Schumer, for your remarks. I think they are worthy of serious consideration. We serve on the Courts Subcommittee together. During that Demo- cratic spring, you chaired the Subcommittee, and now I chair that Subcommittee.
I believe the courts are somewhat different than Congress. I be- lieve the primary charge of a court is to provide justice in the case before it, not to entertain and to create circumstances that might undermine that. So as a person who spent a lot of time in the courtroom who dealt with witnesses, talked to them, held their hand, seen them cry before going in there, many times I comforted them to say, well, probably all that is going to be there is some of the family and a few other people, and don’t worry about that. That was some comfort to them.
Judges and polls show that witnesses would be affected by the fact that what they may say about most intimate, personal, emo- tional issues, family disputes or love affairs and those kinds of things, personal admissions of errors and wrongdoing, or maybe even criminality that they participate in that they have to testify to—I think it is a basis for concern particularly in the trial court. The ability to get truth and witnesses to cooperate and testify accu- rately would be undermined. That is what the judges believe and that is where I am, particularly on the trial court.
I am not unhappy with the process that is established now for the circuit courts, and believe the proposed legislation that allows the presiding judge to make the call rather than the judicial coun- cil would be less satisfactory. That would be an aberrational proc- ess that would be not as justified, in my view, as a uniform council policy.
The Supreme Court obviously has begun to loosen up some. They have allowed their arguments to be taped and produced, but they likewise have given this consideration quite a number of times and have concluded that they do not wish their lawyers and the process to be a television show, and that they would prefer it be focused on the law of the case.
The judges ask awfully technical, legal questions. That is what the American rule of law often is, is standing and procedural mat- ters and statutes of limitations and those kinds of things. There could be a tendency, I think, even for judges to go more away from those issues and to the dramatic issue that may have attracted the attention of the public. So I think the court is wise to consider this.
I think someone asked new Chief Justice Roberts what his views were on this subject, and I am not sure what he said, but he obvi- ously has left it open and the Court has the ability to do that.
So, Mr. Chairman, I know that there is a strong push for this. I know a lot of the TV networks would like to see this occur. I re- spect what they do and respect the work that they perform, but my feeling at this point is we should be very careful about this. And
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particularly by personal experience with Federal district courts, we should not go forward to allow cameras in the courtroom.
Senator Sessions, when you say you weren’t quite sure what Chief Justice Roberts said in response to the ques- tion—
I think you asked it, maybe. Chairman SPECTER. Oh, I asked him. Senator SESSIONS. What did he say, Mr. Chairman? Chairman SPECTER. Well, first, I want to comment where you
said you weren’t sure about what he said. Many of us weren’t sure about what he said in answer to many questions.
His response to that question was that he had an open mind. That was before he was confirmed, however. My view has been that the nominees answer about as many questions as they think they have to and they are as compliant as they can be consistent with their consciences and what they may do later.
You are a wise and experienced Chairman, Mr. Chairman.
We will revisit that. There are more people on television. I walked into my office this morning and saw Justice Breyer on television. You see Justice Scalia on television. It is com- ing.
Mr. Chairman, I would say this, that in the evaluation of it I think the least detrimental would be the Supreme Court. The next least detrimental consequences perhaps would be the courts of appeals, and the most detrimental from my perspec- tive would be the trial courts. So we will just see how it goes and I look forward to the hearings.
Thank you for that, Senator Sessions. I am putting you down in my tally sheet as leaning.
We are going to now turn to the judicial panel.
Thank you very much for joining us, Senator Schumer, and you are welcome to stay.
Our next witness is Judge Diarmuid O’Scannlain, a Ninth Circuit, having been confirmed in 1986. He has had a distinguished record in public service in a variety of posi- tions. He was on the Advisory Panel for the U.S. Secretary of En- ergy. He had been the Director of the Oregon Department of Envi- ronmental Quality, Deputy State Attorney General for Oregon. He served in the Judge Advocate General Corps. He has a bachelor’s from St. John’s and a law degree from Harvard, and a J.D. and LL.M. from the University of Virginia.
Thank you for joining us, Judge O’Scannlain, and we look for- ward to your testimony.
STATEMENT OF DIARMUID F. O’SCANNLAIN, JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON
Thank you very much, Mr. Chairman and members of the Committee. My name is Diarmuid O’Scannlain,
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United States Circuit Judge for the Ninth Circuit, with chambers in Portland, Oregon. I thank you for inviting me to share my per- sonal experience with televised proceedings of the U.S. Court of Ap- peals for the Ninth Circuit.
Our court is one of two courts of appeals involved in a pilot pro- gram under which audio equipment, still cameras or video cameras can be admitted to the courtroom upon request and with approval from the panel hearing the case. Since 1991, until last week, we have logged 205 requests to allow media into oral arguments. Of these requests, the panels granted 133.
But to give some perspective, the Ninth Circuit has heard oral arguments in approximately 24,000 cases since 1991, meaning that media requests for videotaping or live television have been re- quested in less than 1 percent of the total cases receiving oral ar- gument.
To gain access to a Ninth Circuit courtroom, a member of the media with cameras need only fill out a simple form requesting very basic information. The clerk of the court then transmits the request to the panel, which can grant or deny the request by major- ity vote of the judges assigned to that case.
The Ninth Circuit requires media representatives to obey modest guidelines which request proper attire, ban the use of flash photog- raphy or other potentially distracting filming, prohibit the broad- cast of any audio conversations between clients and attorneys, and limit the total number of cameras that can be present for any sin- gle oral argument.
The Committee might also be interested to know that the Ninth Circuit currently makes audio playback of all oral arguments avail- able through its website the day after the hearing, and frequently provides a live audio feed of oral arguments in certain cases. Fur- ther—and this may not be generally known—all arguments are re- corded on the court’s unobtrusive internal videotaping system for the court’s own records.
I have personally had 44 requests to allow cameras in oral argu- ments in which I have been a panel member, of which nearly 80 percent have been granted. In other words, I have personally par- ticipated in 35 appellate oral arguments which were videotaped or televised live, which experience is the basis of my testimony today.
These requests range from high-profile, attention-grabbers to the comparatively banal. Among the more controversial three-judge cases were Brown v. Woodland School District which considered whether certain Sacramento area classroom activities required chil- dren to practice witchcraft, in violation of the First Amendment.
Understandably, cases involving elections and the right to vote have generated substantial public interest and press coverage. For example, I sat as a member of a limited en banc panel of 11 judges in a very high-profile, live video coverage of a case evaluating whether the California recall election of Gray Davis, the Governor, should be enjoined as a violation of the 14th Amendment because of the use of punch card balloting machines.
Of course, not every request to bring media into our courtrooms has been allowed. Panels, perhaps motivated by concern for the parties, have occasionally shunned cameras. For example, in Com- passion in Dying v. Washington, the court grappled with whether
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a State statute criminalizing the promotion of suicide violated the 14th Amendment.
Some judges will vote to deny video access unless assured that the media will broadcast the tape on a gavel-to-gavel basis. Indeed, just last weekend C–SPAN aired the entire oral argument in Planned Parenthood v. Gonzales, a partial birth abortion case that was argued several weeks before.
Finally, Mr. Chairman, I appear before you today both in my in- dividual capacity supportive of cameras in appellate courtrooms and on behalf of the Judicial Conference of the United States, which opposes cameras in trial courtrooms. Trial courts and appel- late courts differ in important respects, primarily with respect to the presence of victims, witnesses, juries and, of course, the parties themselves.
For this reason, I have serious concerns regarding the placement of cameras in trial courts, and suggest that questions about cam- eras in trial courts be directed to my district court colleague from Pennsylvania, Judge Jan DuBois.
I thank you again, Mr. Chairman. I will be happy to take any questions that you or the Committee members may have with re- spect to the use of cameras in the circuit appellate setting.
[The prepared statement of Judge O’Scannlain appears as a sub- mission for the record.]
Thank you very much, Judge O’Scannlain.
Our next witness is United States District Judge Jan DuBois from the Eastern District of Pennsylvania. He has served there since 1988 and prior to that time had a very extensive trial prac- tice in Philadelphia with the law firm of White and Williams. He had clerked for Circuit Judge Harry Kalodner.
He received his bachelor’s degree from the University of Pennsyl- vania in 1952 and his law degree from Yale in 1957, and in the interest of full disclosure has been a friend of mine for 50 years. I was at Penn with him. I did not make Sphinx, but Buddy DuBois did. He had a distinguished record at the Yale Law School and has been really an outstanding Federal judge.
He has handled major cases involving the prison system and has no peer when it comes to hours in the courtroom, frequently run- ning up the GSA bills on Saturday afternoon for air conditioning in the summer and heating in the winter. He is well worth it and beyond.
Welcome, Judge DuBois. The last time you were here was for your confirmation hearing and we have some tougher questions for you today. Please proceed.
STATEMENT OF JAN E. DUBOIS, JUDGE, U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, PHILADEL- PHIA, PENNSYLVANIA
Mr. Chairman, members of the Committee, my name is Jan DuBois. I am presently a judge on the United States District Court for the Eastern District of Pennsylvania. I have served on the district court for 17 years. I am appearing before you today in my personal capacity. I appreciate the invitation to testify and hope my testimony will be useful to you.
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As you requested, my statement will cover the pilot program pro- viding for electronic media coverage of civil proceedings in selected Federal trial and appellate courts—two courts of appeals, the Sec- ond Circuit and the Ninth Circuit, and six district courts, including my district.
The pilot program authorized coverage only of civil proceedings. Guidelines were adopted by the Judicial Conference, and I have ap- pended a copy to my written testimony. The guidelines set forth the procedures to be followed for using cameras in the courtroom. Significantly, they also prohibited photographing of jurors and they provided that the presiding judge had discretion to refuse, termi- nate or limit coverage.
To give you some idea of the scope of the program, from July 1, 1991, through June 30, 1993, there were 257 applications for media coverage in all of the pilot courts. Of these, about 72 percent of the applications were approved. Of this total, 257 cases in which appli- cations were made, about 30 percent were submitted in the Eastern District of Pennsylvania.
The Eastern District of Pennsylvania conducted a study at the completion of the pilot program on December 31, 1994. More cases had been the subject of applications and the percentages remained about the same. Significantly, the breakdown of the cases in which applications were filed in the Eastern District disclosed that about 49 percent of them involved civil rights. Next, in terms of percent- age of requests were tort cases—21 percent.
The Federal Judicial Center evaluated the program and I have a copy of their report. It is entitled ‘‘Electronic Media Coverage of Federal Civil Proceedings’’ in this program. It was published in 1994 and I understand it is on the Federal Judicial Center website. That report included ratings of effects of cameras in the courtroom by district judges who participated in the program and I have ap- pended a copy of that part of the report to my written testimony.
The ratings by the judges who participated in the program were both favorable and unfavorable. For me, the most disturbing rat- ings were these: 64 percent of the participating judges reported that, at least to some extent, cameras made witnesses more nerv- ous. Forty-six percent of the judges believed that, at least to some extent, cameras made witnesses less willing to come to court. Forty-one percent of the participating judges found that, at least to some extent, cameras distracted witnesses, and 56 percent of the participating judges found that, at least to some extent, cameras violated witnesses’ privacy.
In my experience, I had, I believe, a total of four applications for cameras in the courtroom. I granted three, denied one. Strangely, the media—I think it was Court TV—covered what I considered to be the least dramatic case, a product liability case, and rejected cameras in the prison class action, to which the Chairman referred.
In deciding whether to allow cameras, I conducted a conference. The most commonly advanced objections offered by the attorneys were the adverse effect on the parties and the adverse effect on witnesses. In some cases, plaintiffs were concerned about disclosing matters of an extremely private nature, and Senator Sessions has already mentioned that. And in at least one case, a defense attor- ney said the threat of a televised trial would cause the defendant
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to consider settlement, regardless of the merits of the case. As far as the adverse effect on witnesses, counsel were concerned that cameras would make them less willing to appear. And, in general, the attorneys’ objections tracked the comments of the judges who participated in the program.
I will say this about cameras in the courtroom: My personal view is that the disadvantages far outweigh the advantages. I say that mindful of the fact that our courtrooms have to be open, and indeed I think they are open. My concern about cameras in the courtroom stems from the fact that I think the cameras do more than just re- port proceedings. They affect the substance of the proceedings, and I say that based on my experience as a trial judge and my experi- ence for 30 years as a trial attorney.
I think that the impact, or the potential impact, of cameras on jurors, on witnesses and on parties augurs for not allowing cameras in the district courts. The paramount responsibility of a district judge is to uphold the Constitution, which guarantees citizens the right to a fair and impartial trial. In my opinion, cameras in the district courts could seriously jeopardize that right because of their impact on parties, witnesses and jurors.
[The prepared statement of Judge DuBois appears as a submis- sion for the record.]
Thank you very much, Judge DuBois.
Judge O’Scannlain, you testified that you have been a party to 35 appellate proceedings and you have come to the conclusion that you think it is desirable to have cameras in the courtroom, correct?
At the circuit court of appeals level, yes. I think our experience now over 13 years—and it has continued since 1991 and is still on—has indicated that it seems to work well and the vast majority of us feel that it is perfectly acceptable.
Any material impact on the lawyers who are presenting the cases or on the judges who are presiding in terms of responses for grand-standing—
Well, you always wonder here and there— Chairman SPECTER. Let me finish the question, Judge. Judge O’SCANNLAIN. I am sorry, excuse me, I am sorry. Chairman SPECTER. Let me finish the question—or in any way
altering their regular conduct? Judge O’SCANNLAIN. Well, you always wonder here and there of
perhaps some aberrational moments, but by and large I have never been offended by anything that the lawyers or my colleagues have said in a televised oral argument in my court.
You maintained your same judicial de- meanor, notwithstanding the presence of the cameras? That is a leading question.
Well, we certainly try to, and hopefully we do.
Judge DuBois, how many cases were tele- vised in your courtroom?
In my courtroom, only one. I approved three ap- plications. Only one case, a product liability case which did not in- volve personal injuries—it involved the recall of a line of bottled water—
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What was the impact of cameras in the courtroom, if any, on you?
The answer to that question is none on me, and in that case, because of the rather bland nature of the case, the im- pact was positive. There was no negative impact at all. The parties did not object, the witnesses did not object. Cameras did not focus on the jurors, but I asked the jurors after they were empaneled whether they had any objection to having television cameras there and they replied no.
I should add—
So why, with your sole experience with cam- eras in your courtroom being positive, do you come to a different conclusion as a generalization?
First of all, that case was a case that was tried on the first day of the program, July 1, 1991. As my experience with the program and with attorneys who objected to cameras in the courtroom expanded, I concluded that there was an effect on some witnesses, on some jurors and on some parties.
But as a result of having cameras in the courtroom?
Well, I think the effect of having cameras in the courtroom is a telling effect. Let me give you an example. The Fed- eral Judicial Center reported that a large percentage of the judges concluded that there was an impact on witnesses, that witnesses became more nervous. Jurors are told to watch the way a witness responds to a question. If a witness is nervous because of cameras in the courtroom, a juror might very well misinterpret that to mean the witness is nervous because the witness is not telling the truth. That is a dynamic that I never want to see happen in a courtroom in which I am presiding.
It didn’t happen in the case that you pre- sided over where the cameras were present?
It was a rather bland case involving the recall of bottled water.
Well, how about cameras for bland cases?
I don’t think the media would go for that, Sen- ator.
Well, give them the choice. Don’t bar them if it is something they might choose to do.
Senator, may I say this? And I am mindful the lights are going on and I am mindful of your experience in the Su- preme Court in the Navy Yard argument, and I was afraid that today would be pay-back time for me and that I would be cutoff in mid-word.
Time is not up. Give us a chance. Chief Jus- tice Rehnquist, as you know, was looking for an occasion to cutoff a lawyer in the middle of the word ‘‘if.’’
Well, I thought you might try to do that to me today. Thank you for not doing that, sir.
I am concerned that any compromise of an individual’s right to a fair trial, any intrusion on that right is not warranted because I think we have open courtrooms now and the question is do we need courtrooms to be more open. And I think if you can answer that question by saying there would be no trampling of individual
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rights in trials, that is fine. But I don’t think we can say that based on the information that is presently available and I wouldn’t want to sacrifice the right to a fair trial in both civil and criminal cases to make courtrooms more open. And in saying that, I want to add that I certainly favor open courtrooms, but believe our courtrooms are open now.
Well, my time expired in the middle of your answer, so I am going to yield to Senator Sessions.
Take more time, Mr. Chairman, if you need
No. I am going to stick to the time and maintain our Committee record on that, but I will comment that we are all devoted to a fair trial and we are not going to do any- thing that would impede on that. And I think the legislation which Senator Grassley testified about leaves it open to eliminate the cameras where the judge feels there would be an impingement or where participants and parties to the trial object.
Senator SESSIONS. Thank you. Judge DuBois, the American ideal of justice is to create a climate
for the very fairest outcome in every case that comes in a court of law in this country. Wouldn’t you agree with that?
I certainly would.
We even give you two judges a lifetime ap- pointment. We can’t even cut your pay because we want an inde- pendent judge to preside over the trial who will take steps to make sure that trial is conducted in a way that guarantees that extra- neous emotional forces don’t come together in a way that might ad- versely impact a fair decisionmaking process. Wouldn’t you agree with that?
I would, sir.
And in your opinion, based on your years on the bench, you have concluded that cameras in the courtroom could be an adverse factor in guaranteeing as fair an outcome as we can possibly achieve?
That is correct, sir.
Looking at the polling data that they did in New York to review their television coverage, it says they polled— and I think it is pretty startling, really. Forty-three percent of citi- zens would be less willing to serve on a jury if there were cameras and 54 percent would be less willing to testify as a witness to a crime if cameras were present. I think that is even more troubling.
A New York survey of voters conducted by Bill Bowers of North- western University found that 4 out of 10 potential victims would be less willing to testify in a criminal case if cameras were present. The Federal Judicial Conference study found that 64 percent of participating judges in the pilot program reported at least to some extent, as you noted, cameras make witnesses more nervous.
Do you agree? Are those polling data numbers consistent with your experience as a judge and your own observations?
I agree with the conclusions. My experience isn’t broad enough to reflect specific percentages, but I believe every one of the factors that you mentioned from the New York study and the
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Judicial Center study are factors that weigh against a fair trail and should not be compromised to make our courtrooms more open.
Well, we just have to be careful. Trials are critically important crucibles to ascertain truth. They are not for entertainment; they are there to help decide correctly complex, often emotional disputes between defendants and victims and pros- ecutors, and between civil litigants and that sort of thing.
Let me ask Judge O’Scannlain, now, if you do coverage of the ap- pellate courts, does the coverage cover the whole hearing and then when it is put on the six o’clock news, do they just excerpt some small part of it, and does that give you a concern that perhaps an incorrect perception might be conveyed to the public?
Senator, there have been a variety of experi- ences. Some of the cases in which I participated were video only, with no audio, and snippets from that were used in the public broadcasting special program about the Ninth Circuit.
In other situations, as I indicated, some of my colleagues will vote not to grant permission unless there is a commitment by C– SPAN or whatever the particular media entity is that they would run it on a gavel-to-gavel basis. So it would be the full 20 minutes and a 10-minute argument, or the full 40, that kind of thing. That is why I thought it was quite telling and quite impressive that—
Let me just suggest that a local TV station that might have an interest in it would not be obligated to show the whole argument at six o’clock. They could simply show one snippet from it, is that correct?
Yes, that is true, and that specifically hap- pened in a case which was argued in San Francisco having to do with a cross on public property. There was a lot of local interest in it, and as a matter of fact the local Bay area television stations did indeed show it on a snippet basis.
Mr. Chairman, my time is up.
Thank you very much, Senator Sessions, and thank you very much, Judge O’Scannlain and Judge DuBois. There are many, many more questions we could ask. We have your writ- ten statements. We have a very long third panel, so we are going to thank you and we may be following up with some additional questions for the record.
It would be our pleasure. Thank you very much, Mr. Chairman.
Thank you, Mr. Chairman.
We will now call panel three—Ms. Barbara Bergman, Mr. Peter Irons, Mr. Seth Berlin, Mr. Brian Lamb, Mr. Henry Schleiff and Ms. Barbara Cochran.
Our first witness on this panel is Ms. Barbara Bergman, who is testifying in her capacity as President of the National Association of Criminal Defense Lawyers. She has been a professor of law at the University of New Mexico School of Law. She worked as a staff attorney for the public defender here in Washington, was associate counsel for President Carter. She has a bachelor’s degree from Bradley and a law degree from Stanford.
Thank you for joining us, Ms. Bergman, and the floor is yours for 5 minutes.
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STATEMENT OF BARBARA E. BERGMAN, PRESIDENT, NA- TIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, D.C.
Mr. Chairman and distinguished members of the Committee, as President of the 13,000-member National Associa- tion of Criminal Defense Lawyers, NACDL, I am honored to be here today to share the association’s views regarding the important issue of cameras in Federal courtrooms.
While current rules do not permit cameras in Federal district courts, NACDL’s members have experience with televised pro- ceedings in their State courts. And in discussing this issue recently with our board of directors, it was apparent that there is no con- sensus within the defense community regarding the overall desir- ability of cameras in courtrooms in criminal cases. The position of our association reflects that diversity of experience and opinion.
The Supreme Court has held that there is no constitutional right of access for cameras in the courtroom. As a result, in criminal cases the purported value of televised court proceedings must be weighed against the accused’s constitutional rights to due process and a fair trial.
The NACDL believes that S. 829 does not strike the right bal- ance. We would like to see the bill amended so as to authorize cam- eras in district court criminal proceedings and interlocutory ap- peals only with the express consent of the parties. In all other criminal matters coming before the United States courts of appeals and the Supreme Court, NACDL favors access for cameras, and there are many arguments on both sides.
To the extent that cameras in the courtroom promote greater public understanding of the judicial process and the constitutional protections that apply to that process, we generally support their expanded use. Not unrelated is the notion that televised trials may encourage greater preparation and a higher standard of profes- sionalism.
But in the alternative, the arguments against cameras, there are many that concern us a great deal. First is pressure on jurors. The decision to televise a trial signals to the jury that their verdict is likely to be scrutinized by the viewing public, and defendants are less likely to receive a fair trial when jurors feel the need to rec- oncile their verdict with strong public sentiments in favor of a par- ticular result.
As a member of Terry Nichols’s defense team in the State capital prosecution arising from the Oklahoma City bombing, we were ex- tremely concerned about the possibility of strong community pres- sures being brought to bear on Oklahoma jurors if the court per- mitted cameras in the courtroom. We objected to the presence of such cameras under Oklahoma’s rule permitting the defendant to object to cameras and ultimately they were excluded.
While it is impossible to measure the precise impact cameras may have had on that trial, the fact that some of the jurors have refused to speak to the media and others did so over a year after the verdict reinforced my belief that excluding cameras reduced at least some of the community pressure on the jury in the small com- munity of McAlester, Oklahoma. Finally, past television coverage
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may make it more difficult to select an impartial jury in case there is ever a retrial.
We also share the concern about pressure on witnesses, that it will discourage witnesses from testifying, that it may affect the ability of them to testify in a way that doesn’t distort what they have to say. The concern we have is that it will affect the jury’s evaluation of their credibility.
We also have concern about pressure on the defendant from cam- eras that can affect the accused’s demeanor and willingness to tes- tify. And more fundamentally, the prospect of extended media cov- erage may discourage the accused from exercising their right to trial in the first place, and it is of particular concern in cases in- volving humiliating accusations or corporate defendants unwilling to expose themselves to negative publicity.
It is also of particular concern in capital cases where evidence of childhood sexual and physical abuse is frequently offered in mitiga- tion. The prospect that such evidence may be broadcast across the country may cause a defendant to hide such information even though it could save his life. Finally, even when the accused is ac- quitted, the stain on their reputation is not easily erased and cam- era coverage may exacerbate this unwarranted punishment.
Given these concerns, the sponsors of S. 829 have wisely avoided a rule authorizing unrestricted camera access. But rather than placing the ultimate decision in the hands of the presiding judge, we think the consent of the parties—the accused acting with the advice of counsel and the government—should be required before cameras are permitted to televise criminal trials or interlocutory appeals.
The positive or negative effects of cameras depend on the facts and circumstances of each case. The parties who are familiar with the witnesses who will testify, the evidence that will be offered and other facts that might indicate the potential for prejudice are in the best position to determine the appropriateness of cameras. More- over, permitting the parties to withhold their consent avoids the time-consuming distraction of litigation regarding the judge’s deci- sion to permit or forbid that coverage.
While we support efforts to ensure more sunshine on our demo- cratic institutions, that goal should not be allowed to eclipse the fundamental purpose of a criminal trial, which is not education or entertainment, but justice.
[The prepared statement of Ms. Bergman appears as a submis- sion for the record.]
Thank you very much, Ms. Bergman.
Our next witness is Professor Peter Irons, Professor Emeritus of Political Science and Director of the Earl Warren Bill of Rights Project at the University of California in San Diego. Professor Irons has authored six books on the Supreme Court and served two terms on the national board of the ACLU. He has an under- graduate degree from Antioch, a Ph.D. in political science from Boston University, and a law degree from Harvard.
Thank you very much for coming in today, Professor Irons, and the floor is yours.
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STATEMENT OF PETER IRONS, PROFESSOR OF POLITICAL SCIENCE, EMERITUS, UNIVERSITY OF CALIFORNIA AT SAN DIEGO, SAN DIEGO, CALIFORNIA
Senator Specter and Senator Sessions, I am very glad to be here this morning. I am going to limit my comments—and my statement is part of the record—if I might.
Your full statement will be made a part of the record, as are all of the statements.
I would like to limit my comments to television cov- erage of the Supreme Court, and I base that on my experience with providing to the public access to the audio arguments, the audio- tape arguments before the Supreme Court. Let me just give a little history behind that.
Back in 1955, Chief Justice Earl Warren initiated the audiotaping of Supreme Court oral arguments. I think he did so be- cause he recognized in the past term the historic importance of ar- guments in Brown v. Board of Education, both the first and the second cases. He felt that keeping those arguments on tape and making them accessible to the public would serve not only an his- toric, but a civic benefit particularly for students.
Now, until 1986 there was no restriction on access to those tapes. But in 1986 when Fred Graham of CBS News obtained a copy of the Pentagon Papers oral argument and played excerpts of it on television and radio, Chief Justice Burger imposed restrictions on access to those tapes, limiting it to what were termed private re- search and teaching.
I decided in 1991, having heard some of these tapes when I was in law school, that it would be a good educational project to make them available to the public, particularly for use in schools. So I obtained copies of 23 historical oral arguments, including Roe v. Wade; Miranda v. Arizona; the Watergate tapes case, United States v. Nixon; and the Pentagon Papers case.
Simply to illustrate, with the Committee’s indulgence, I would like to just push a button right here and for less than a minute bring you into the Supreme Court chamber for part of the argu- ment by Thurgood Marshall, then chief counsel for the NAACP Legal Defense and Education Fund, in the historic case of Cooper v. Aaron, and I hope this will be audible.
[Audiotape played.] Mr. IRONS. Now, I played that, Mr. Chairman, to— Chairman SPECTER. Mr. Irons, I don’t think we all heard that.
I will give you a little extra time. Summarize what was just played on the tape.
All right. It was an argument by Thurgood Marshall about the experiences of the African-American children in Little Rock when they were being escorted into the schools through mobs and how—
And what case was this in? Mr. IRONS. This was in Cooper v. Aaron, in 1958. Now, my point here is very simple that these tapes have been
played in thousands and thousands of school rooms, and I would be glad to enter this into the record, as well, a copy of a set of those tapes. My own experience and the experience of hearing from lit- erally hundreds of teachers and students who have heard these
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tapes is that they would very much appreciate the chance not only to hear these arguments, which very few of them have been able to witness in person, but also to see the arguments in the Supreme Court. There is nothing, I think, more educational than that oppor- tunity, making it available to the public, and particularly to stu- dents, to do that.
This past Monday, I was talking to a class in judicial process at Missouri State University in Springfield and I asked the class—and they had heard excerpts of these tapes, about 50 students, and I said how many of you would really appreciate the opportunity to be able to witness these arguments in person on video to see the lawyers argue the cases and the judges ask questions. And there was a unanimous show of hands in support of that project.
So I think, in conclusion, Mr. Chairman, Senator Leahy and Sen- ators Sessions, that there would be a great public benefit. I also have available a statement that I received yesterday by e-mail from Chief Judge Mary Schroeder, of the Ninth Circuit, on which Judge O’Scannlain sits, I think backing up his testimony, but also saying that ‘‘In my opinion, the Supreme Court and the public would ben- efit from at least experimenting with televised oral arguments in cases that, like the California case, are of intense public interest and presented by counsel of the highest ability.’’
I would like to submit that statement as well. Chairman SPECTER. It will be made part of the record. [The prepared statement of Mr. Irons appears as a submission
for the record.] Chairman SPECTER. Thank you very much, Professor Irons. We now turn to Mr. Seth Berlin, a partner in the law firm of Le-
vine Sullivan Koch and Schulz. He has handled a variety of First Amendment, defamation, privacy and reporter’s privilege cases. He has been nominated to the governing Committee of the American Bar Association’s Forum on Communications Law. He has a magna cum laude degree from Brown University and is a cum laude grad- uate of the Harvard Law School.
The floor is yours, Mr. Berlin.
STATEMENT OF SETH D. BERLIN, LEVINE SULLIVAN KOCH AND SCHULZ, LLP, WASHINGTON, D.C.
Thank you, Mr. Chairman and members of the Com- mittee. I really appreciate the opportunity to testify today.
At a fundamental level, ours is a Government in which the peo- ple are sovereign and therefore possess the right to observe our Government in operation. As the Supreme Court has explained, and as Senator Grassley alluded to in his testimony this morning, people in an open society do not demand infallibility from their in- stitutions, but it is difficult for them to accept what they are pro- hibited from observing. Simply put, our democracy works better when people understand how their Government institutions oper- ate, and our Government institutions work better when their oper- ations are understood and scrutinized by the people.
We have a constitutionally required right of access to court pro- ceedings and it cannot be seriously disputed that camera coverage will materially further most people’s exercise of that right. The simple truth, as the Florida Supreme Court put it in authorizing
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cameras into that State’s courts back in 1979, is that newsworthy trials are newsworthy trials and they will be extensively covered by the media both within and without the courtroom, whether cam- eras are permitted or not.
It makes a lot more sense to provide the public with a picture of the actual in-court proceedings rather than having the public getting its information about trials solely from second-hand sum- maries, or worse, potentially prejudicial and inflammatory charac- terizations by interested third parties.
Next, I would like to point out that there is generally no con- stitutional bar to camera coverage. Following the Supreme Court’s decision in Chandler v. Florida, courts confronting this issue rou- tinely have concluded that television coverage does not interfere with the due process rights of a criminal defendant or of other par- ties or participants in a court proceeding.
I would also like to talk about the benefit of at least affording judges discretion in this area. A number of courts that otherwise would have found camera coverage warranted have felt constrained by either Federal Rule of Criminal Procedure 53 or by the Judicial Conference guidelines that prohibit camera coverage in trial courts.
For example, in General Westmoreland’s landmark libel trial against CBS, the parties consented to CNN’s televising the pro- ceedings. Then-trial Judge Leval also made extensive findings that favored camera coverage. He nonetheless denied CNN’s petition based on his conclusion that the rules of the Judicial Conference and of his own court left him no choice—a determination that was then upheld by the Second Circuit.
Earlier this fall, a Federal district court in Pennsylvania reached a similar conclusion, relying on the Judicial Conference guidelines. The court denied a request by Court TV to televise the trial over the Dover, Pennsylvania School Board policy of suggesting the study of intelligent design along with the study of evolution, de- spite the profound national interest on the subject, the consent of all of the parties and the fact that the trial involved none of the usual potential objections that people raise in authorizing camera coverage.
Legislation granting judges at least discretion to authorize cam- era coverage in appropriate circumstances may well have yielded a different result in these important matters and many other im- portant controversies of the future.
Finally, I want to talk briefly about the experience of those courts that have authorized camera coverage. Both the Federal Ju- dicial Center study of a Federal court pilot program and similar studies of experimental programs in a large number of States have confirmed that camera coverage does not interfere with the fair and orderly administration of justice.
Moreover, the Federal courts are increasingly using cameras for many purposes other than broadcasting court proceedings to the public. Judge O’Scannlain talked about the Ninth Circuit’s internal videotaping system. The trial court in the Moussaoui prosecution authorized an audio-visual feed to a nearby overflow courtroom, and in response to the change of venue in the Oklahoma City bombing trial, Congress authorized closed-circuit televising of trials
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to crime victims where the trial is moved more than 350 miles and out of State.
Last, there is the overwhelmingly positive record of camera cov- erage in the State courts. All 50 States allow at least some camera coverage of judicial proceedings. The best evidence that these rules work is that States have continued to operate under them, in many cases for decades. California continued its practice of televising State court proceedings even after the O.J. Simpson trial left some to question that policy. And just last week, the Florida Supreme Court unanimously rejected efforts to limit its rules allowing cam- era coverage of court proceedings throughout that State’s court sys- tem.
To sum up, permitting Federal court proceedings to be televised will dramatically enhance the public’s exercise of its right of access to judicial proceedings. Congressional action will open the door’s of the Nation’s Federal court system to millions of Americans who are otherwise unable as a practical matter to view these proceedings.
[The prepared statement of Mr. Berlin appears as a submission for the record.]
Thank you very much, Mr. Berlin.
Our next witness is the distinguished Chief Executive Officer of C–SPAN, and has been since C–SPAN was founded in 1979. He has had a regular on-air presence with his ‘‘Booknotes’’ up until last year and continues to have an on-air presence, as I can person- ally testify to, having been interviewed by Mr. Lamb as recently as August of this year.
Prior to being a co-founder of C–SPAN, he worked as a freelance reporter for UPI radio, a Senate press secretary and a White House telecommunications policy staffer. In 1974, Mr. Lamb began pub- lishing a bi-weekly newsletter called ‘‘The Media Report’’ and was Washington bureau chief for Cablevision magazine. A graduate of Purdue University, he majored in speech, where he received his bachelor’s degree.
Just a little anticipatory on the testimony, C–SPAN covers Sen- ate hearings with regularity and I, for one, hear an enormous amount of comment about it. People talk about C–SPAN with at- tentiveness only parallel to professional sports as to what this indi- vidual has observed.
The next few minutes are yours, Mr. Lamb.
Mr. Chairman, before he starts, I know how much people watch this and actually watch Mr. Lamb because I was walking through an airport once and somebody came up and said, Mr. Lamb, how long have you been wearing glasses? I said, no, no, he is a lot younger and he doesn’t have to wear glasses.
STATEMENT OF BRIAN P. LAMB, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, C–SPAN NETWORKS, WASHINGTON, D.C.
Senator Leahy, they do the same thing to me often in airports—Senator Leahy, can I have your autograph? And, you know, I have to disappoint them and tell them I am not you. I have gotten that, by the way, on Senator McCain and Senator Glenn, and I can go down the list of the number of people that I am thought to be.
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I was in a classroom a couple of weeks ago, some 16-year-old jun- iors, talking about C–SPAN and what we do in government and civics. One of the students put her hand up and asked me—and I don’t remember why because it is an odd question—she said where do they put the jury in the Supreme Court room? And it struck me, as Professor Irons was talking about the educational value of all of this being one of the more important reasons why we are even doing this.
We have a commitment to make here this morning, and we have done it before, and that is basically if the Supreme Court will ever allow its oral arguments on television, we will carry all of them from start to finish. We will find a place to put them all.
Judge O’Scannlain was talking about members of the Ninth Cir- cuit often want gavel to gavel. I personally am not in favor of en- forcing gavel to gavel. I think the news media plays an enormously important role in interpreting, and I often find it fascinating be- cause you can’t really find out what the Supreme Court members think about television. They don’t meet the public very often. As the Chief Justice says, they have an open mind and you never can really find out if they have ever voted on it or not.
But I often thought it was odd because they will allow a member of the print press to come in and sit in the press area, or a tele- vision reporter to sit in the press area, walk outside, stand in front of a camera and interpret everything that went on in the court- room. But giving us a chance to see how it really happens seems to be something that they can’t agree to.
We are interested in finding a place to carry every argument; there are only 80. If you look at the statistics about the Supreme Court, there are only 50 seats in the Court—there are 300 alto- gether, but only 50 where just an ordinary citizen who comes to this town who wants to watch an entire oral argument can sit and watch. So you have to get in line and you have to take your chances.
There are 12 seats set aside for people to sit for 3 minutes, and that hardly does much for you other than being able to see what the Court looks like. The rest of the seats are determined by either who is before the Court in an oral argument or where the Justices want to fill those seats with people that they know.
So this is just like it was with the Senate in 1986 and the House in 1979—an extension of the gallery, an opportunity to see some- thing that is usually an hour in length. And that particular event isn’t going to determine how they vote. They go behind closed doors for that, and that is fine with us.
I would be glad to answer any questions, and you have our com- mitment that we will carry all of these oral arguments if we are allowed to.
[The prepared statement of Mr. Lamb appears as a submission for the record.]
Well, thank you very much, Mr. Lamb. We will have some questions for you in a few minutes after we hear from Mr. Schleiff and Ms. Cochran.
Before taking on that position, he was active in a number of key posts in the television industry, including Executive Vice President
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for Studios USA, executive producer at Viacom, Senior Vice Presi- dent for Viacom, and had been Senior Vice President for HBO.
He began his career as a law clerk to Federal Judge Gurfein of the Southern District of New York. He has a bachelor’s degree cum laude from Penn and a doctorate in law from the University of Pennsylvania Law School, where he was an editor of the law re- view.
Thank you for joining us, Mr. Schleiff, and we look forward to your testimony.
STATEMENT OF HENRY S. SCHLEIFF, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, COURTROOM TELEVISION NETWORK, LLC, NEW YORK, NEW YORK
Thank you very much, Chairman Specter, Rank- ing Member Leahy and Senator Sessions. On behalf of our Nation’s only television network dedicated to providing a window on the American system of justice, I am delighted and honored to testify before your Committee which is considering legislation that would provide our American citizens, both litigants and viewers, with the benefits of televising the proceedings of our Nation’s Federal courts.
This Committee, in particular, is well aware of the fact that our trials and courtroom functions are open to the public, and therefore to the press. Indeed, our Founding Fathers themselves well under- stood the importance and need for this openness. It is not by acci- dent that they built a system of justice on really four great pil- lars—an independent judiciary, the right to trial by jury, rights of due process for defendants, and a court system which would be open to the public where, as Justice Oliver Wendell Holmes well said, quote, ‘‘Every citizen should be able to satisfy himself with his own eyes.’’
I do believe that all citizens today, not just the print press or those very few who can fit into a courtroom, should be able to watch their judicial system in action, and therefore that the few lingering concerns about electronic coverage or why it should be de- nied the equal access accorded print coverage are increasingly spe- cious in this the 21st century.
Indeed, there can be no reasonable argument with the fact that advances in technology such as a smaller and unobtrusive camera merely expand the experience of being in the courtroom to the greater community, thereby making public trials truly public, as was intended by the Founders.
Certainly, our system of jurisprudence, and especially our con- stitutional history of providing public trials is an essential element of our democracy, and not only of our democracy but of freedom. Just as the United States today represents a beacon of freedom, we should also allow that light to shine on the example that our own courtrooms provide. Our system is not perfect, but it is one of which we can and should be proud, especially in our ongoing efforts to preserve justice and freedom around the world.
The importance to our own citizens of allowing cameras in the courtroom is really three-fold. One, it enhances public scrutiny of the judicial system which helps assure the fairness of court pro- ceedings—a concern of Senator Sessions and one which we all
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share. This, in turn, serves to further promote public confidence in our third branch of Government. And, three, it does increase our citizens’ knowledge about how this branch actually functions.
Because television is the principal means through which most people get their news, it only follows that the same vehicle be em- ployed as a tool to inform and to educate the electorate in this way. Justice Louis Brandeis said it far more succinctly—sunshine is the best disinfectant. We agree, and we vigorously support the pro- posed legislation which would open courtrooms to cameras and in- deed let the sunshine in.
Certainly, camera coverage of Government proceedings is nothing new in the United States. Both Houses of Congress have already opened their chambers to television cameras. This legislation would then merely provide the third branch of our Federal Government to be given the opportunity to take a similar step.
Of course, in the proposed legislation which Court TV has long supported, trial judges are also to be given the discretion in their courtrooms to determine whether to permit a camera in a par- ticular trial, which is a most important and practical safeguard.
Today, there is certainly growing consensus in the United States that having cameras serves the public interest. Some 43 States per- mit cameras in their trial courts. Since 1991, Court TV has covered more than 900 U.S. trials and legal proceedings, providing more than 30,000 hours of courtroom coverage. Moreover, in our 15 years of such coverage, no judgment has ever been overturned because a camera was in the courtroom.
On the contrary, a myriad of studies over the past two decades tracking the impact of cameras has indicated that they do not dis- rupt or otherwise interfere with the proceedings. If anything, cam- eras can help keep newspaper coverage, or for that matter sound bites, whether we read them in the papers or hear them on the local news, in context and thus provide the least sensational and most unfiltered form of coverage. For this proposition, I will merely cite Senator Schumer’s eloquent analysis of the Amadou Diallo trial.
Finally, I should note that some justices of the Supreme Court have over the years claimed that allowing cameras in their court- room would cause them to lose some degree of their personal ano- nymity or perhaps even lessen the Court’s moral authority. How- ever, I would submit to you that where no witnesses or other par- ties are involved, just lawyers arguing to other lawyers, albeit law- yers dressed in robes, about issues which may fundamentally affect our daily lives, be it affirmative action, personal choice or the like, the potential loss of anonymity would seem to be a fair price to pay.
Mr. Schleiff, could you summarize the bal- ance of your testimony, please?
Yes. I would say only in conclusion that we do think that such testimony to be seen at the Supreme Court level would do nothing but actually further the dignity with which that Court is properly held. I would say, finally, that we do think that the American public deserves truly to see the judicial system in ac- tion at all levels and to have Federal courtrooms open to camera coverage.
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[The prepared statement of Mr. Schleiff appears as a submission for the record.]
Thank you very much, Mr. Schleiff.
Our next and final witness on this panel is Ms. Barbara Cochran, President of the Radio-Television News Directors Association. She has a very distinguished career in 28 years significantly in Wash- ington, D.C., Vice President and Bureau Chief for CBS News, exec- utive producer of NBC’s ‘‘Meet the Press,’’ Vice President of News for National Public Radio, managing editor of the Washington Star. She has a bachelor’s degree from Swarthmore and a master’s de- gree from the Columbia University Graduate School of Journalism.
Thank you for joining us, Ms. Cochran, and we look forward to your testimony.
STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIO–TEL- EVISION NEWS DIRECTORS ASSOCIATION, WASHINGTON, D.C.
Thank you very much, Mr. Chairman, Senator Leahy and Senator Sessions, for inviting me to appear today on be- half of the Radio-Television News Directors Association and the 3,000 television and radio journalists who are its members.
RTNDA supports the Sunshine in the Courtroom Act and we wel- come Chairman Specter’s legislation to open the Supreme Court to television coverage. We believe both bills serve the important pub- lic policy goal of instilling trust in the Federal judiciary by allowing Americans to witness for themselves what transpires within the court system.
It is simply not right that Americans form their opinions about how our judicial system functions based on the latest episode of ‘‘Judge Judy’’ or ‘‘CSI.’’ Nor does it make sense that the nominees for the Supreme Court are widely seen in televised hearings con- ducted by this Committee, only to disappear from public view the moment they are sworn in as justices.
RTNDA’s members are the people who have demonstrated that television and radio coverage works at the State and local level, and they can make it work on the Federal level. The interests of our citizens are not fully served in this day and age by opening Federal courtrooms to a limited number of observers.
By using today’s technology, citizens can see and hear for them- selves what occurs inside the courtroom. Technological advances have minimized the potential for disruption to judicial proceedings. Cameras available today are small, unobtrusive and designed to operate without additional light. Moreover, the electronic media can be required to pool their coverage, cutting down on the equip- ment and personnel in the courtroom.
The presence of cameras in many State courtrooms is routine and well-accepted. All 50 States, as we have heard already, now permit some manner of audio-visual coverage of court proceedings. RTNDA members have covered hundreds, if not thousands of State proceedings across the country without incident and with complete respect for the integrity of the judicial process. To the best of our knowledge, there has not been a single case since 1981 where the presence of a courtroom camera has resulted in a verdict being
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overturned or where a camera was found to have any effect what- soever on the ultimate result.
State studies show that reporting on court proceedings both by broadcast and newspaper outlets is more accurate and comprehen- sive when cameras are present. Unfortunately, the ban on cameras in Federal proceedings means the public sees what takes place on the courthouse steps, not what transpires where it matters most, inside the courtroom. In fact, because of the Federal ban, American citizens have been deprived of the benefits of firsthand coverage of significant issues such as whether the Government can take pos- session of a person’s private property and transfer it to developers to encourage economic development, whether executing juveniles constitutes cruel and unusual punishment, and whether the term ‘‘under God’’ in the Pledge of Allegiance is unconstitutional.
In contrast, just last month people throughout the world were able to turn on their television sets to witness the opening of the trial of Saddam Hussein. Iraqi officials apparently understood how critically important it is to make this process public to the widest possible audience.
During the 2000 Presidential election dispute, RTNDA fought hard for televised coverage of the arguments before the Supreme Court and we were gratified when Chief Justice Rehnquist made the historic decision to release audio tapes at the conclusion of the argument. We were also very pleased to hear our new Chief Justice express to this Committee his openness to cameras in the Supreme Court. The release of audio tapes by the Supreme Court has edu- cated the public and caused no harm. What is needed now is con- sistent and complete audio-visual coverage.
Federal courts have not on their own motion taken steps to per- mit electronic coverage of their proceedings. Therefore, RTNDA re- spectfully submits that the time has come for Congress to legislate. This proposed legislation has the potential to illuminate our Fed- eral courtrooms, demystify an often intimidating legal system and provide an appropriate level of public scrutiny. It is time to provide unlimited seating to the workings of justice everywhere in the United States.
Thank you, Mr. Chairman, and I ask that some supplementary material be submitted along with my written statement.
[The prepared statement of Ms. Cochran appears as a submission for the record.]
Thank you, Ms. Cochran. We will be glad to have the supplementary material and put it in the record.
We now go to the five-minute rounds for members.
Professor Irons, do you think it is an appropriate matter for the Congress to act legislatively to open up the Supreme Court to tele- vision coverage?
Yes, I do, Senator Specter.
Do you have any doubt as to the constitu- tionality of such action?
No. As you pointed out in your opening statement, Congress exercises considerable oversight, direction of the Federal courts, the composition, the procedures, et cetera. I think this falls within their purview.
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But one thing I would like to note, since Ms. Cochran just men- tioned the audiotaping of the Bush v. Gore arguments, is the re- sponse to Chief Justice Rehnquist to that experience. He was talk- ing with Fred Graham afterwards. They were at a party together and Fred quoted him as saying Rehnquist said he was very pleased with the reception that the playing of the Court’s audio tapes had gotten. He said he watched it on television and he thought it worked well, the way they put up the pictures that identified the justices and the lawyers who were speaking. He thought that the coverage communicated to the public what was happening in an ex- tremely important case and he was pleased.
So my point is that the next step beyond that—since the pictures were put up, anonymity, of course, disappears the minute those pictures are up—would be best served—
I am sorry to interrupt, Professor Irons, but we have a lot of ground to cover.
Let me move to Mr. Lamb. Mr. Lamb, would C–SPAN be in a position to cover the full televising of the Supreme Court? Some of the justices have raised objections about snippets here and there. Would there be anything to lead C–SPAN to do other than total coverage, just as you do now for the Senate and the House of Representatives?
No. It would be exactly as we do—like this hearing today, the whole hearing will be on C–SPAN. It would be the same thing with every oral argument.
What information do you have as to the rat- ings for C–SPAN? How many people watch C–SPAN?
We don’t take ratings. We do surveys from time to time to find if there is anybody out there watching. And it is really interesting because we are the only network like it and we have no idea on a quarter-hour basis who is watching.
We have been able to identify that out of a country of almost 300 million now, about 10 percent of the society is interested on a daily basis in the kinds of things that you are doing and what we are covering. They come to us all the time to see if there is something there of interest to them. There are another 3 in 10 people who are interested when things get a lot of national attention and they will come to us. Then there are 6 in 10 people that never watch. But it would make sense to you if you just look at the voting numbers that only about half the people vote in a Presidential election. So I suspect that most people that don’t vote won’t watch what we do.
You now have C–SPAN3, where you make selections as to what is going to be shown, and some very wise judgments from what I have seen. For example, you covered our hearing yesterday on Saudi Arabia.
A brilliant decision.
I have an instinct that C–SPAN3 gets more viewing than 1, which has the House, and 2, which has the Senate. Any comment?
I don’t know. C–SPAN3 is not in nearly as many homes as 1 and 2, and it is on the digital tier—technical lan- guage—which means that people have to go after it and have to find it. But I think as times goes by, as the whole television world
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is going to change, people will have the same access to C–SPAN3 as they do to the other two networks.
I have a question for the other panel mem- bers which is a big one based on the testimony of Judge DuBois, who was concerned about how television would impact at a trial and the statistics which Senator Sessions cited about jurors being less willing to serve. I thought Judge DuBois made a very telling point about witnesses being nervous being televised, and that might impact on jury evaluation.
So I would like to ask the four of you, because my time is going to expire in just a few seconds, how you respond to the concerns which Judge DuBois and Senator Sessions raised as to the ability to guarantee a fair trial if it is televised. I will start with you, Ms. Bergman.
Yes, Senator Specter. I think our proposal is de- signed to address that, and that is the consent of both parties, both the defense counsel—and I address only criminal cases—and the Government would be required before televising of the trial would be permitted, because those are the people who know the case the best. They know the witnesses, they know the evidence, they know the issues that may arise. By giving those parties the opportunity to give consent or to not give consent, they are in the best position to guarantee that the trials are fair, and they can take into account those concerns about jurors, the concerns about the witnesses, and the concerns about the impact on the defendant as well.
Thank you, Senator. I think that the experience of the State courts that have trial coverage with cameras which is now a very broad experience, in some cases lasting decades, dem- onstrates that these concerns are not to be completely overlooked, but can be easily managed.
The bill that is currently before the Committee which affords trial judges discretion to handle this has built into it protections on this issue. In particular, if a judge is exercising discretion, the judge—and I would submit with no disrespect to Ms. Bergman that the judge is actually in the best position to balance all of the inter- ests that are before them in a court; that sometimes parties have a particular interest that may or may not be actually consistent with what is the appropriate to do, and that that overwhelmingly record really demonstrates that this is possible to do without inter- fering with the fair and impartial administration of justice.
When criminal defendants and other parties have challenged on appeal the presence of cameras, there is a very strong record of courts saying that they have not, in the manner that they have been used, interfered with the operation of the trial court. And based on that experience, I think those concerns may be a bit over- stated.
Yes, I agree. I think the most recent New York study actually spoke to that very point, and I quote, ‘‘Witness in- timidation is neither borne out by the record nor sufficiently strong to warrant barring cameras from the courtroom across the board.’’ I think it is exactly the judge’s discretion which has to be used and I think which is appropriately provided for by this legislation.
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Yes. I agree that the important thing about this bill is that it gives the discretion to the judge, who is in the best position to make the decision about whether cameras should be ad- mitted or not. I also would refer to the State experience. Some States have been allowing cameras into trials for as much as 20 years and there have not been the problems that are feared.
Professor Irons, my time has expired, so I don’t have time to ask you a question now, but I interrupted you. Keep that thought in mind because I am going to come back to you.
OK. Chairman SPECTER. Senator Leahy. Senator LEAHY. Thank you, Mr. Chairman. I just want to make absolutely sure I understand, Professor, your
answer to Senator Specter because he was asking a question I was concerned about. You see no problem with the constitutionality?
No, I don’t, Senator Leahy.
I don’t either, but I just wanted to get that on the record.
Ms. Bergman, am I correct that some in the defense bar are for the idea of the cameras and some are opposed?
There is a diversity of opinion depending upon what court we are talking about. Generally, for appellate argument or Supreme Court argument, the defense bar—at least our board of directors didn’t have any major opposition to that at all. Our concern is with the impact on jurors, witnesses, defendants at the time of trial.
That also requires some sense on the part of the trial judge not to allow it to turn into a circus. I mean, a trial judge can easily, for example, protect the identity of jurors. I mean, you can easily set it up in such a way that jurors’ faces will not be shown, or any reaction of jurors during a trial. Is that not correct?
Senator Leahy, there are steps that can be taken to try to provide some safeguards to protect the identity of jurors, but that does not address the concerns about witnesses who will refuse to come forward, who will refuse to testify. It does not ad- dress the concern of the impact on witnesses when they testify and how it may affect their demeanor in the courtroom and how they present their testimony.
And it doesn’t deal with the issues of the very intimate, private types of information that if people think it is going to be televised nationally they are not going to want to testify. Or in some cases you will have situations with a defendant who will say I don’t want that presented because I don’t want that broadcast, and so it is going to have an impact that cannot be evaluated merely by pro- tecting identities of jurors.
We could discuss it further. Having defended cases and having prosecuted cases, I still come down on allowing the public to know.
I might ask Mr. Lamb, as far as keeping down the intrusiveness, we were halfway through this hearing before I realized there is a robot camera here in front of me going back and forth. That is rel- atively easy to do, is it not, just from a technical point of view to
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cut down on the intrusiveness of cameras, which doesn’t go to Ms. Bergman’s question, of course, of having yourself seen when you are testifying? But at least as far as conducting a trial, you can lower the intrusiveness of cameras.
I think Henry Schleiff would be better at—he has done a lot more courtrooms than we have. But when we are talking about the Supreme Court, they undoubtedly, if they ever get to tel- evision in the Court, would want to operate their own system just like the Senate and the House do. And you can basically hide the cameras, make it very easy, and people who go before the Court won’t even know there are cameras in the room.
Justice Scalia recently noted on C–SPAN that he wasn’t concerned about gavel-to-gavel coverage of oral arguments, but was concerned that cameras take these 15-second out-takes that can distort rather than inform the public. Isn’t this really a question of whether the press acts in a responsible way?
I remember during the Michael Jackson trial, every night I was so glad to see that genocide in Darfur had obviously ended because the national press didn’t bother to cover that anymore. They had this one molestation case out in California.
Isn’t that a question for the media and their own responsibility?
As I said earlier, the justices have a different view of the electronic press compared to the writing press. I just don’t un- derstand how you can delineate between the two, but they do. Jus- tice Scalia has a very unusual view of what television ought to do. He likes the idea of gavel-to-gavel, doesn’t like the snippets, and even when he goes out to speak, he will often say if there are tele- vision cameras in the room, I won’t speak.
We had a little bit of openness earlier this year for about three sessions, but it has been a tough go. We have had public comments about all this and have great disagreement with him. I just think you can’t delineate between the two. The First Amendment applies to everybody.
As Ms. Cochran stated earlier, you get this great view of justices during our hearings, as we will with the latest nominee in January, but then the marble walls close in.
Isn’t it true, Ms. Cochran, that there are a lot of examples where coverage has worked very well? For example, I was one of the ones who urged the Attorney General to make coverage available for the families in the Oklahoma City trial because the trial was appro- priately moved and a change of venue. But the families who want- ed to watch the trial weren’t able to pick up and go, too.
Wouldn’t that be an example of how all sense of justice for the victims and everybody else was served?
Yes. I mean, the easiest way to provide access to the widest number of people is through bringing a camera into court, and that is an excellent example. The families were able to see what was taking place in the courtroom and it didn’t appear to have any of the intimidating effects.
Our members work with judges all the time on the ground rules for coverage. They won’t show jurors. If there is a witness whose testimony needs to be taken in privacy, that is something that the judge can order, and so on. So all of these things can be worked out. But I think the important thing to remember is that trials
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were designed by our Founding Fathers to be public, and so con- cerns about embarrassment and that kind of thing—these trials are public anyway and the presence of a camera is not going to make a significant difference.
Also, with your indulgence, I would like to address the snippets issue, if I may.
We prefer to call them sound bites or excerpts. The proceedings are going to be covered by the press anyway. Newspaper reporters are going to take selected quotes. Television reporting is going to use selected quotes. And if there are cameras present, then the quotes that are used will be the actual words as they were delivered by the people delivering them rather than hav- ing it be a mediated, second-hand account of what was said. So it really enhances the accuracy of the reporting rather than taking away from it.
Thank you, Mr. Chairman. I think these are val- uable hearings. I thank the panel.
Thank you very much, Senator Leahy. Senator Sessions. Senator SESSIONS. Ms. Bergman, I think you are alone in this
group. Ms. BERGMAN. I feel alone, sir. Senator SESSIONS. A good defense counsel is used to that some-
times. Ms. BERGMAN. I am. Senator SESSIONS. Under the legislation as you read it, the
Grassley bill, do the parties themselves have any ability to object? Ms. BERGMAN. My understanding is that it is a decision that the judge has the discretion to make, and I would assume the parties would have an opportunity to be heard on it, but ultimately would have no right to object to keep the cameras from actually coming
in. And it raises another concern, Senator, which is that in that
whole process, if the parties have grave concerns about the impact this is going to have, it is going to require hearings before the judge to present this evidence, to raise this issue, to potentially dis- close defense theories that counsel would prefer not to be disclosing at that stage.
It raises the possibility of increased litigation and taking, quite frankly, time away from the trial lawyers’ preparation and work on the trial rather than focusing on this peripheral issue. That was a concern we had in the State capital prosecution of Terry Nichols, and luckily we were able to have a professor from Kansas who came in to litigate that issue for us because it ended up being a writ all the way up to the Oklahoma Supreme Court and it took a lot of time and energy that could have been better spent in other ways.
And if a defendant in a civil or criminal case, or even a plaintiff is threatened, let’s say, that we are going to call witness such-and-such and that witness is going to say horrible things about you if you go to trial and you challenge us and you force us to go to trial, do you think it is a quantitative difference
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that that might be videotaped and then might be on the evening news as compared to maybe being reported in the newspaper?
Absolutely, I think it makes a tremendous dif- ference when it is broadcast with a camera in the courtroom. Put- ting it on the evening news is qualitatively different in terms of the nature of the impact of that, and I think it impacts in several ways. One is the fear that a witness will be called to say certain things. The other is the aspect of I don’t want to put someone through testifying and being televised and having to talk about those things.
I have been involved in capital cases where there were defend- ants who did not want very painful information presented by rel- atives, friends, family members. And it was an extreme effort to get them to agree to do that, and then if they thought it was going to be televised nationally, I know it would have made a tremendous difference.
And is it your experience, as it has been mine as a prosecutor for quite a number of years and a defense attorney on occasion, that some of the key things you have to do is just spending time holding the witnesses’ hands? They are just terri- fied.
And if they are told they are going to be on television, maybe national television, do you think it adds to the terror and concern that they face?
It would just magnify it astronomically.
You have said that parties have the right to object. Does that include the prosecutor?
Yes, sir. Senator SESSIONS. That is good. Thank you, Mr. Chairman. I would just say this has been an ex-
cellent panel that has raised some very important issues. I think there is a remnant, Mr. Lamb, out there that keeps up with America. I call them a patriotic remnant that know more what goes on here than we do. We have got this Committee just down to you and me, Mr. Chairman, and here we are. We are sit- ting here, but some people are watching every word of this, maybe more than the Senate, and they are forming opinions with less stress and pressure on them than we have and I think it is
healthy. I really do believe that. But as a person who has tried a lot of cases, I am inclined to
think that the judges may be correct in their overall perception that justice would not be enhanced in the trial court, but we will continue to discuss it.
Thank you. Chairman SPECTER. Thank you very much, Senator Sessions. Professor Irons, you were in the midst of commenting actually
beyond the scope of my question, which is why I wanted to move on before, but let’s hear what you have to say.
Well, what I was trying to get across, Senator Spec- ter, was simply that we have, and have had for 50 years now ac- cess to the words that are spoken in the Supreme Court. And it is a very small, and I think, as pointed out very aptly, now, because of technology, unobtrusive process to add faces to those words.
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I remember last year when I was attending the Supreme Court oral arguments in the Pledge of Allegiance case, sitting right be- hind Dr. Newdow in the bar section of the Court, I couldn’t imagine a more educational experience than being able, particularly for stu- dents, but for the general public as well, to see those arguments. They were dramatic on both sides. And I don’t think it would have detracted from the decorum of the Court or any of its proceedings to be able to witness those kinds of arguments.
So I think that my own experience in talking with students at every level, from fourth grade all the way through high school, playing them excerpts of these arguments, trying to explain what was going on in the Court, would be enhanced immeasurably—and I am simply talking now about the appellate level of argument, but would be enhanced immeasurably by being able to see those pro- ceedings as well as just listen to them.
You testified in your opening statement that it was Chief Justice Earl Warren who began the practice of record- ing the Supreme Court arguments?
That is correct.
Was there any contemporaneous statement made or any statement made later by Chief Justice Warren as to why he did that, what his thinking was?
Yes. As a matter of fact, Mr. Chairman, in the acces- sion file at the National Archives—these arguments have been moved from the Archives building downtown out to Suitland, Mary- land, but in the accession file—and I am probably the only person who went through that file after there was an effort by the Su- preme Court to limit my access to the tapes.
A statement by Chief Justice Warren was sent to the Archives along with the first batch of the tapes saying that he wanted them open to the public. It wasn’t until 1986 that restrictions were put on access by Chief Justice Burger, and those restrictions remained in place for 7 years until these tapes were released and the Court decided, I think, very wisely, particularly in view of the publicity that their effort to restrict them had produced, to lift the restric- tions again.
So now, as a matter of fact, you can go into the Supreme Court bookstore just down the block and purchase CD-ROMs called ‘‘The Supreme Court’s Greatest Hits,’’ which have the arguments in 62 cases, the full arguments. These, of course, are edited and narrated for classroom use. It is hard to keep students’ attention during an entire hour of argument.
I think my basic point really is that I can’t see any detriment to the Supreme Court or to the U.S. courts of appeals in having the pictures added to the words that are already available to the pub- lic.
Do you think Chief Justice Warren would have been wise to have had audio recordings of the Warren Com- mission proceedings made available to the public?
I think so. As I said, Chief Justice Warren recog- nized—and, of course, he came from public office and he was very used to his words being recorded and reported in the press and it didn’t intimidate him at all. But I think what he recognized was that having presided over the second round of arguments in Brown
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v. Board of Education—and I searched high and low in the Ar- chives hoping that they would be there somewhere—but that that is an experience that should be recorded and preserved for the pub- lic.
It was difficult to get Chief Justice Warren to agree to print the transcripts of the Warren deliberations cov- ering 26 volumes and 17,000 pages. The staffers had to go to the Congressional members who were used to printing large volumes of materials in the Congressional Record which weren’t too salient or pithy, and that was done.
Mr. Schleiff, what about ratings for Court TV? Mr. Lamb doesn’t rate C–SPAN. Do you rate Court TV?
Yes, we do. Chairman SPECTER. And how are your ratings? Mr. SCHLEIFF. They are good these days, sir. But in fairness,
most of our ratings or focus on our ratings come from the prover- bial prime time in the evenings from eight to eleven. While we do have ratings during the day of our hearings and our coverage of proceedings, they are important to the overall brand, if you will, of the network, but it is not where we derive any principal portion of our revenues or anything else. But they are indispensably impor- tant to what Court TV obviously, given the name, stands for.
And, yes, it is a core audience that watches it. It is an audience that is very devoted, actually, to the process.
How many hours a day do you televise?
The entire day, pretty much nine right through when most of the East Coast courthouses close, until five o’clock.
And how about overnight?
We will repeat sometimes a portion, depending upon what the case is, and some of it on the weekends. But over- night we go into something else which is called our more enter- taining or seriously entertaining mode.
Mr. Lamb, you do interview Supreme Court justices from time to time. What has C–SPAN’s experience been on that?
Well, the most interesting experience was with Chief Justice Rehnquist, who over a period of about 15 years let us sit down with him four times. And it was always odd to me that he would be so open personally and when he would go out to speak at his circuit or he would give a speech, he would allow our cam- eras in; he never refused that. But when it came to inside that courtroom, he would just shut it down.
Several years ago, we would take our cameras into the press room and set up and do live programs in there. All of a sudden, 1 day he sent the word down ‘‘no more.’’ It is really hard to know what the thinking is inside that conference room when they make some of these decisions and they vote on them.
There is really only one justice out of the nine that are there now that really has not been open, and that is Justice Souter, to any- thing. We have done lots of programs with these justices and kids live coming out of the East Conference Room in the Supreme Court. We have actually had on the air over since we have been cataloging this, since 1987, 700 different events involving Supreme
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Court justices. So, really, the closer you get to that courtroom, the more they want to shut it down and don’t want to open it up.
So on those events, you have televised all members of the Court, except for Justice David Souter?
And Justice Scalia has been very uninterested in tele- vision cameras, the two of them. But all the rest of them—you can go into our files and find tape. We have it in our archives. I mean, if you want to see what these justices look like and what they sound like, after we have done all the hearings that you have been involved in, you can go to our archives and still find them to this day.
Well, you say Justice Scalia has been unin- terested in television?
Yes, he has. He opened three events this year and that is the first time since he has been on the Court that he has allowed our cameras in. If he sees a camera in his giving a speech—and he gives a lot of them—he will just say either take the camera out or I am not going to speak.
Does anybody choose alternative B?
You know, interestingly enough, let me just take a minute to tell you what happens, and it is a disappointment.
You can take your time. My colleagues have all gone.
The disappointment is this, that the venues where he speaks, often universities, often connected with law schools, frankly will cave. They would rather have him there instead of upholding the principle of openness. One of the best examples of this was the City Club of Cleveland, which a couple of years ago gave him the Citadel of the Freedom of Speech Award. Justice Scalia went to Cleveland to accept the award. We cover the City Club of Cleveland all the time. We were told we could not cover this time the Free- dom of Speech Award given to Justice Scalia.
You know, once they have up their mind on the Court, it is hard to change it and we have not been successful.
Well, perhaps he is modulating a bit. Per- haps he has a little different point of view.
I think that we really need to get a public reaction to televising the Supreme Court of the United States. My instinct is the public reaction is going to be very positive. The public does not know what has happened to Government in the United States. The Court has taken over and rules with very much an iron hand, and very much an inexplicable hand.
When we had the hearings for Chief Justice Roberts, it provided an opportunity to discuss in some detail what the Court has been doing. And when we analyzed a case called United States v. Morri- son which involved the Supreme Court declaring part of the Act unconstitutional protecting women against violence, we were able to publicize that the Court, in a five-to-four decision, found as it did because they disagreed with the Congress’s, quote, ‘‘method of rea- soning,’’ close quote.
Up until that decision, Commerce Clause questions had been de- cided on whether there was a rational basis for the Congressional judgment based upon the numerous hearings which Congress holds. The four-person dissent said that there was a mountain of
evidence, but Chief Justice Rehnquist disagreed with our method of reasoning, which I found, and said it at the hearings, highly in- sulting.
Then they upheld parts of the Americans With Disabilities Act on access for a paraplegic five to four and denied coverage of the Americans With Disabilities Act on employment. Justice Scalia de- nounced the standard as a flabby test, he called it, designed to have the Court be the task master of the Congress to see that we had done our homework. And they made the decision based upon a test called congruence and proportionality which was invented in 1997 in a case called Boerne on the Religious Restoration Act. Judge Alito is going to be asked, as Chief Justice Roberts was, to comment about that standard.
But I think Americans would be flabbergasted to hear that the Court devises some test on proportionality and congruence, and ex- pects the Congress of the United States to know what the stand- ards are. And I think it would put some legitimate pressure on the Court to come down with decisions, if not understood by C–SPAN’s audience, at least understood by the Judiciary Committee. So we are going to continue to push it and it is a question of when, in my judgment, not a question of it, and the sooner the better.
Without objection, his statement will be made a part of the record.
We thank you all very much for coming. That concludes our hearing.