From the Greensboro News & Record (8/9/09): I hope everyone watched closely as Supreme Court nominee Sonia Sotomayor faced her inquisitors at the U.S. Senate during her confirmation hearings. It may be the last time you see her on TV.
The opportunity for the American people to see these distinguished jurists engage in any vigorous discussion of the law drops dramatically when a justice is done with Congress. We saw the give-and-take between Judge Sotomayor and some senators because Congress allows the people into its occasionally packed galleries through the camera’s eye.
But once justices are confirmed and seated on the Supreme Court, retired Justice Sandra Day O’Connor noted recently, “you won’t see a lot of them.” Federal courts, the Supreme Court in particular, have long been hostile to letting the people in through the camera’s eye.
Legal scholar Louis Brandeis, later a Supreme Court justice himself, wrote: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
True. Technology and open government laws have combined through C-SPAN and similar state programming to bring publicity and electric light into the public functions of local, state and federal legislatures, executive offices, and in courtrooms around the country. Most in public service agree that the practice not only informs the public on the specific issues covered, but also educates it on the workings of government.
But the nation’s highest court? School is closed. Remember the case of Bush v. Gore, which determined the outcome of a presidential election in which more than 100 million Americans participated? As expected, the courtroom was packed for oral arguments; interest was, to use a legal term, unprecedented.
And as news organizations pleaded on behalf of the hundreds of millions of stakeholders who wanted to watch and hear the arguments, the court responded with technology that was state-of-the-art — well, maybe in the 19th century!
Internet streaming? TV cameras? Live radio broadcast? Hardly. The highest court in the land let the American people hear arguments to determine their next chief executive only after those arguments concluded. On audiotape.
Without this “special” consideration the court might not have released the taped argument until the end of its term. Last year, only weeks into the 2008-09 term, the court had already denied three requests for expedited electronic coverage. The court will, however, provide a written transcript, often within an hour of the argument’s conclusion.
Welcome to the Bronze Age.
Customarily, the Chief Justice doesn’t give a reason for denial. He doesn’t have to. That’s why they call it the Supreme Court.
And therein lies the problem. As the highest court in the land, and the final arbiter of what is and what is not legal and constitutional, no one can tell the court what to do. Sen. Arlen Specter, D-Pa., knows this. For years he’s led a bipartisan effort to let the American people see and hear the activities that determine their future. But Congress, despite its considerable power, can only go so far when it comes to the administration of the courts.
Even when a justice appears sympathetic to televised arguments — as Judge Sotomayor does, and as Chief Justice Roberts and Justice Sam Alito did during their confirmation hearings — that sentiment typically vanishes in the interest of collegiality.
The justices have marked their territory. Making people’s problems into entertainment, said Justice Antonin Scalia, is sick. Retiring Justice David Souter said, famously, in 1996 that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Justices say they are concerned that statements would be taken out of context, reduced to sound bites. This, of course, is possible when televising any government proceeding. It challenges the professionalism of both broadcasters and government officials.
But oral arguments are not “American Idol,” or “Cops.” Appellate courts operate without a trial court’s risk of exposing witnesses or shocking evidence.
They are tightly ordered proceedings between seasoned lawyers and, at the Supreme Court, even more seasoned judges. The high court itself has held that the media have the right to be present in a courtroom, and that their presence enhances the integrity and quality of the proceedings.
The judges’ fears explain exactly why the proceedings will be carried on C-SPAN, not TMZ. Supreme Court oral arguments will have all the flash and sensationalism of “Book TV.” The arguments are beneath the nation’s ranking jurists.
German Chancellor Otto Von Bismarck defended closing off government to public eyes because, he quipped, “laws are like sausages; it is better not to see them being made.” I’ll take Brandeis and his American-made disinfectant any day.
by Dan Trigoboff, a communications faculty member at Methodist University and a former adjunct professor at Elon University