Federal judiciary voices opposition to cameras-in-court bill

Thursday, September 7, 2000

WASHINGTON — Camera coverage of courtroom proceedings has become
commonplace in many of the 48 states that allow it.

But at a Senate hearing yesterday, it became clear once again that the
federal judiciary wants to buck the trend and keep cameras out of federal
courts for as long as possible.

A judge representing the Judicial Conference, the policy-making body
of the federal judiciary, told a Senate subcommittee in no uncertain terms that
the conference is vehemently opposed to legislation that would open federal
courts to cameras.

Allowing television coverage of federal court trials would cause “real
and irreparable harm” to the right of citizens to a fair trial, said 3rd U.S.
Circuit Court of Appeals Chief Judge Edward Becker.

“We cannot tolerate in federal courts even a little bit of
unfairness,” the Philadelphia-based judge said at the Judiciary Subcommittee on
Administrative Oversight and the Courts hearing on Senate Bill 721. The bill
would allow — but not require — federal judges at all levels to
permit broadcast coverage. It is similar to, but tougher than, legislation that
passed the House of Representatives in May that would give veto power over
camera access to the parties in a case as well as to the judge.

The opposition was not monolithic, however. Nancy Gertner, a
Massachusetts federal judge speaking “only for myself,” told the senators she
favored camera access. “Public proceedings in the twenty-first century
necessarily mean televised proceedings,” she said.

The move to allow cameras in federal courts may not fare as well in
the Senate as it did in the House anyway — partly because the Senate is
nearing adjournment, and partly because Sen. Orrin Hatch, R-Utah, the powerful
head of the Judiciary Committee, opposes it.

In a statement prepared for yesterday’s hearing, Hatch bowed to the
Judicial Conference’s opposition to the bill. “I believe the federal judiciary
has special expertise in this area and is entitled to a measure of deference,”
said Hatch.

But several senators at the hearing were not nearly as

Sen. Chuck Grassley, R-Iowa, who introduced the bill and convened the
hearing, said “helping the public to become well-informed about the judicial
process will result in a healthier judiciary and, I believe, a better country.”
Noting that his bill would give judges complete discretion to allow or deny
camera access, Grassley added, “It’s curious to me that the Judicial Conference
argues for more judicial discretion all the time, but doesn’t trust its judges
to make decisions regarding cameras in the courtroom.”

Sen. Russell Feingold, D-Wisconsin, said cameras in the court was “an
idea whose time came some time ago.”

Sen. Arlen Specter, R-Pa., also voiced support of the bill and went
one step further, revealing that he is preparing another bill that would
require the Supreme Court to allow broadcast coverage.

“I want to take the bull by the horns,” said Specter, who argued a
case before the Supreme Court six years ago and lost. “We ought to tell the
people of American the best we can what goes on at that court.”

Sen. Charles Schumer, D-N.Y., also weighed in with his support of
cameras in the federal court. Televising federal court proceedings would serve
the public interest, he said, “without interfering with the administration of

Opposition to cameras has a long history in the federal courts,
reaching its highest point during Warren Burger’s tenure as chief justice from
1969 to 1986. After he retired, congressional pressure led to an experiment in
the early 1990s in which selected courts allowed camera access to civil —
not criminal — trials and hearings. An internal study of the experiment
found broadcast access had little if any negative impact. But the Judicial
Conference, acting in the midst of the sensational O.J. Simpson murder trial,
voted to let the experiment die. In 1996, the conference opened the door a
crack, permitting each federal circuit to decide whether or not cameras should
be allowed. Only two of the 13 circuits — the 2nd and 9th — agreed
to let cameras into their appellate proceedings.

Becker told the committee that the potential risks of allowing cameras
— intimidation or distraction of jurors or witnesses, grandstanding by
lawyers and judges, as well as greater exposure of judges to security problems
— make it “not worth the candle.”

“You have an impairment of the process, and what do you get for it?
You get 56 seconds, tops, on the nightly news,” he said. “What you get out of
this is a whole lot of nothing.”

Becker was so adamant that he insisted there should be no “balancing”
of the public’s right to know with the right to a fair trial; the fair trial
right is pre-eminent, he said.

By that logic, Schumer countered, the public might as well be excluded
altogether from trials, since there is always some risk to the fairness of a

Becker was also not swayed by the testimony of Massachusetts state
Judge Hiller Zobel, who presided over the widely televised 1997 trial of
British nanny Louise Woodward. Zobel favors the practice, asserting that
broadcast access causes “no problems.” Potential problems can be handled by the
judge who presides over the trial, he said. “It’s the judge who decides who is
going to be a showboat.”

Media advocates also got a chance at the hearing to voice their
support for the Grassley bill.

David Busiek, news director of KCCI-TV in Des Moines, said camera
coverage has become routine in Iowa, where cameras have been allowed in state
courts for 20 years. “Several thousand cases have been covered, and not one
judicial action has been overturned,” said Busiek who represented the
Radio-Television News Directors Association, a longtime warrior in the fight
for camera access.

Washington, D.C. lawyer Ronald Goldfarb, author of a 1998 book on the
issue, TV or Not TV, said neither
the House nor the Senate bill “goes far enough.”

“Despite almost a quarter century of study and experience with this
one medium, with very few exceptions the federal court system remained
reluctant to move into the 20th century, much less the 21st,” Goldfarb