Among the issues being vetted in the lame duck session is the longstanding effort to get cameras into federal district and appeals courts.
Cameras have been allowed in state courts for years, 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 in federal court.
The latest effort is H.R. 917, the Sunshine in the Courtroom Act (H.R. 917), which would authorize federal judges in district and appeals courts to allow cameras at their discretion and with some exemptions — no showing of jurors, for example.
Efforts have been made periodically for years to pass legislation authorizing cameras. The latest effort is running Into the same roadblocks, which include opposition from the Supreme Court and the Judicial Conference of the United States.
Speaking for the conference at a House Subcommittee on Courts, Intellectual Property, and the Internet hearing on the bill Wednesday, Judge Julie Robinson advised the legislators to let the conferences' three-year test of cameras conclude next summer and it would come to a conclusion based on vetting that info.
But she made clear that for the moment, the conference remains opposed to the cameras for a number of reasons, which she elaborated. They include threats to due process, to the safety of judges of witnesses, that lawyers might start playing to the cameras — a criticism Supreme Court Justice Elena Kagan has raised, and more.
On the other side were various members of the subcommittee, including the bill's co-sponsors, and Mickey Osterreicher, general counsel of the National Press Photographers Association.
Osterreicher said that with all due respect to courtroom artists, it was time to move out of something akin to cave painting to the high-definition television world of today. While he said he agreed grand jury hearings should not be public, he used it to make a point that if people had been able to see the deliberations, maybe the reaction to the decision might have been different.
Rep. Steve King (R-Iowa), a big supporter of the bill, said Congress had both the authority and duty to expand public access and open up the machinery of government for both education and accountability.
Bill backers on the committee pointed out that courts are already open, that witnesses identities could be protected and that judges were not mandated to allow cameras, just allowed to use their judgment in permitting them.
One prominent legislator, Rep. John Conyers (D-Mich.), ranking member of the parent Judiciary Committee, echoed some of the conference concerns.
While he said he had voted for a similar bill, he shared concerns that any move to put cameras in the court not jeopardize the fundamental right to a fair and impartial trial.
He cited Kagan's concerns about playing to cameras and a Supreme Court decision in a case involving televising a state criminal trial observing that the chief function of the court is to ascertain the truth, an objective the use of TV cannot be said to materially further, instead calling cameras the introduction of "an irrelevant factor" into the proceedings. The court also said the use of cameras could cause "acute unfairness," said Conyers, perhaps so subtly as to avoid detection.
He said he was also concerned about the privacy rights of witnesses who disclosed personal information and whether wide dissemination would discourage them from testifying. He said he is not sure that obscuring witnesses images or voices would be enough protection, a concern seconded by Robinson.
Then there was the safety of judges, a concern definitely seconded by Robinson, who said all judges got threats, and that putting their faces on TV troubled her. Conyers appeared to agree with Robinson that waiting until the three-year test had ended and the data examined would be the way to go.
Speaking in defense of cameras, Rep. Ted Poe (R-Tex.), himself a former judge, said that he had tried out cameras early on in his career from felonies to capital murder cases and it helped demystify the court for the public, put the "public" into public trials, and presented "no problems." He said witnesses were protected, children and victims were protected, the jury was not shown, the media cooperated, and lawyers did not play to the cameras. "I have had experience and it worked out," he said. Block and preventing that access "does not make any sense to me," he said.
There will almost certainly be no action on the bill in the lame duck session, so it will be up to the 114th Congress, which is seated in January, to renew the debate.