Congress once again is trying to spur the federal courts system to move boldly into the 20th century. You know—the one where TV was invented and became a ubiquitous force for access to events that had once been inaccessible due to geography.
OK, we know it’s the 21st century, but that may be too much of a leap for the judiciary on the question of living in a world where social media has remade our ability to process and share news vital to the nation.
State courts have been televised for a couple of decades, Congress for nearly three. But with the exception of two federal appeals courts—the ninth and second circuits—and a current test of cameras in a handful of federal district courts, not federal court.
The latest effort is running into the same roadblocks as earlier efforts, which include opposition from the Supreme Court and the Judicial Conference of the United States.
There are certainly issues that need to be worked through, including how to protect jurors and witnesses and the right to a fair trial. But the cameras in the court legislation currently being circulated, which looks a lot like all the other bills that died in previous Congresses, does not force any judge to allow access. It says that cameras should be allowed at the discretion of the judge. That means any judge for any reason can decide not to allow them.
But trials that can be televised, should be, particularly Supreme Court oral arguments, where there is no jury or witnesses to protect, only the most important, potentially life-altering decisions argued by lawyers before judges, neither of whom should have a problem having that public process be made widely available to, well, the public.
We agree with C-SPAN that it would be preferable for the court system to adopt cameras on their own initiative, rather than at the directive of Congress. There are separation of powers objections that may or may not hold water, but are enough to continue to delay action in that body.
So, while we applaud the legislature for taking another stab at it, that route is unlikely to get us where we want to go.
Speaking for the Judicial Conference at a House Subcommittee on Courts, Intellectual Property, and the Internet hearing on the bill two weeks ago, Judge Julie Robinson advised the legislators to let the conferences’ three-year test of cameras conclude next summer, and it would then come to a conclusion based on vetting that info.
We can wait a while longer for the conference to weigh in, which would be the preferable vehicle for taking the courts forward in time.
So let’s protect judges, the anonymity of jurors and the right to a fair trial. But let’s also update the right to a public trial, to the benefit of trial participants and court-watchers. The two are not mutually exclusive.
At the same hearing, Mickey Osterreicher, general counsel of the National Press Photographers Association, said that with all due respect to courtroom artists it was time to move out of something akin to cave painting and into an HD world. We couldn’t agree more.