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By Marion Edwyn Harrison, Esq.
August 10, 2006
In the first primaries following the summer recess of the Second Session of the 109th Congress three incumbents were defeated. The reasons are disparate and irrelevant to the message of this commentary except to the extent that the defeats reflect to some extent voter displeasure with the Congress. There are manifold reasons why voters may be exasperated with the 109th Congress, not the least of which is its unprecedented spending of taxpayers’ money. There doubtless are complaints as to what Congress did not do.
Sometimes—maybe often—there is a blessing in what Congress might have done but did not do. In that category are the proposals to change the law to interfere with the functioning of the Federal Judiciary by requiring all trials and oral arguments to be open to photography, videotaping and other technological intrusions and diversions.
Two bills not enacted would have opened Federal courtrooms to cameras. Congress is not curtailed by any false-advertising statute. Hence, it is not uncommon for bills to have smiley titles, “Reform” doubtless the most ubiquitous. Thus, there is the proposed Sunshine in the Courtroom Act of 2005. The sunshine, of course, has nothing to do with the sun or some sun god but merely is a slick attempt to enhance public—and more particularly, media—support. Another bill would require television coverage of United States Supreme Court oral arguments. Both bills contain vaguely worded exceptions. That one is sponsored by Senators Charles E. Grassley (R-IA), a farmer who one year taught political science, and Charles E. Schumer (D-NY), a lawyer and master at television and radio self-promotion, probably doesn’t tell much. That the other is sponsored by Senate Judiciary Chairman Arlen Specter (R-PA), a bright, competent and experienced litigator, seems potentially alarming.
Regardless of legislative parenthood, not only attorneys but the public should be grateful that Congress thus far has enacted neither, nor any other bill on the subject.
Federal judicial proceedings are serious events, always highly meaningful to the litigants, often to many others. Federal judges, and more competent and serious counsel, do not make speeches directed to some vast, undefined, unidentified collection of people beyond the courtroom. The dignity of the proceeding and the rights of litigants—and in jury trials of jurors—easily are compromised when the courtroom becomes a show directed to some vast, unseen audience.
The media inevitably would not display an entire trial or oral argument, only the dramatic—and sometimes prejudicial—segments. Even if it did, nosey lay viewers mostly would not watch it all. Secondly, the overwhelming majority of viewers, as laymen and not lawyers, however otherwise literate, would not understand much of what they saw. Thirdly, unless there were primetime replays, many viewers would not be serious and busy people because courts function during business, not leisure, hours. Finally, judges, jurors, litigants, witnesses and attorneys are entitled to some minimal level of privacy and protection against those who would harm them. It may seem a stretch but surely the more militant of those who advocate unlimited media exposure of trials ultimately would advocate like coverage for witnesses and grand jurors as they reveal and receive evidence of violent and other felonious crimes.
The States of the Union, of course, have their right to govern their own courts. Much more experimentation would be prudent before there were amassed sufficient experience to suggest Federal proceedings ought to be media-blasted all around.
A few jurisdictions do allow, for example, television coverage. One is Florida. This writer tried a civil, non-jury case once in Miami. The underlying issue as the media viewed it related to abortion (although the case directly did not). Plaintiff’s attorney played to the television, even to the point where the Judge, part “good old boy” and part sarcastic, reminded the attorney he no longer was directly facing the camera! The case had a number of defendants, one without counsel. That individual played the same game, insisted upon taking the stand, then played wholly to the camera—and managed to lose the case for all Defendants (although upon appeal this writer secured a reversal for his clients—but not on the publicity issue).
That single empirical example aside, the point is that contemporaneous and widespread filming brings out at best the ham and a rash of irrelevance, often worse, in the attorneys and witnesses turned actor. Any judicial proceeding is a serious adventure, many in the Federal Judiciary especially so. They must be treated as such.
United States Supreme Court transcripts of oral argument are available and to a limited extent are aired. The oral transcripts (an innovation of the late Chief Justice William H. Rehnquist) should suffice for historians and others whose motivation is serious.
There are all variations of corny quips about the country being safer when Congress is in adjournment or recess. Whatever the choice of quip, it is well that the 109th has not, and probably will not, force indignity, irrelevance or any other kind of circus upon Federal judicial proceedings.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.
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