[Senate Hearing 112-584]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-584

 
           ACCESS TO THE COURT: TELEVISING THE SUPREME COURT

=======================================================================

                                HEARING

                               before the

                     SUBCOMMITTEE ON ADMINISTRATIVE
                        OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 6, 2011

                               __________

                          Serial No. J-112-55

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                   AMY KLOBUCHAR, Minnesota, Chairman
PATRICK J. LEAHY, Vermont            JEFF SESSIONS, Alabama
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
SHELDON WHITEHOUSE, Rhode Island     MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
         Paige Herwig, Democratic Chief Counsel/Staff Director
           Danielle Cutrona, Republican Acting Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois, 
  prepared statement.............................................     4
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......    48
    letter.......................................................    50
    prepared statement...........................................    61
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    65
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

Cady, Hon. Mark, Chief Justice, Iowa Supreme Court, Des Monines, 
  Iowa...........................................................    10
Goldstein, Tom, Partner, Goldstein & Russell, P.C., Washington, 
  DC.............................................................     8
Mahoney, Maureen, of Counsel, Latham & Watkins LLP, Washington, 
  DC.............................................................    13
Scirica, Hon. J. Anthony, Chief Judge U.S. Court of Appeals for 
  the Third Circuit, Philadelphia, Pennsylvania..................    11
Specter, Hon. Arlen, former U.S. Senator from the State of 
  Pennsylvania, and Attorney at Law, Philadelphia, Pennsylvania..     7

                         QUESTIONS AND ANSWERS

Responses of Mark Cady to questions submitted by Senator Grassley    35
Responses of Thomas Goldstein to questions submitted by Senator 
  Grassley.......................................................    37
Responses of Maureen Mahoney to questions submitted by Senator 
  Grassley.......................................................    38

                       SUBMISSIONS FOR THE RECORD

Cady, Hon. Mark, Chief Justice, Iowa Supreme Court, Des Monines, 
  Iowa, statement................................................    40
Gazette, November 23, 2011, article..............................    52
Goldstein, Tom, Partner, Goldstein & Russell, P.C., Washington, 
  DC, statement..................................................    53
Kerrey, Bob, Chairman, Global Scholar, Empowering the World to 
  Learn, New York, New York, December 2, 2011, letter............    63
Mahoney, Maureen, of Counsel, Latham & Watkins LLP, Washington, 
  DC, statement..................................................    67
National Law Journal, November 14, 2011, article.................    79
New York Times, October 2, 2011, article.........................    82
Scirica, Hon. J. Anthony, Chief Judge U.S. Court of Appeals for 
  the Third Circuit, Philadelphia, Pennsylvania, statement.......    84
Specter, Hon. Arlen, former U.S. Senator from the State of 
  Pennsylvania, and Attorney at Law, Philadelphia, Pennsylvania, 
  statement......................................................    92
Washington Post, November 25, 2011, article......................    97


           ACCESS TO THE COURT: TELEVISING THE SUPREME COURT

                              ----------                              


                       TUESDAY, DECEMBER 6, 2011

                               U.S. Senate,
           Subcommittee on Administrative Oversight
                                    and the Courts,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Amy 
Klobuchar, Chairman of the Subcommittee, presiding.
    Present: Senators Klobuchar, Whitehouse, Durbin, 
Blumenthal, Sessions, Grassley, and Lee.

 OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM 
                     THE STATE OF MINNESOTA

    Chairman Klobuchar. Good morning. I am pleased to call this 
hearing of the Senate Judiciary Subcommittee on Administrative 
Oversight and the Courts to order. We have an extremely 
distinguished panel of witnesses here today. We especially do 
want to welcome back Senator Specter to this Committee where he 
has spent many, many hours. I will introduce the panel after 
the members make their opening statements.
    Today we will be discussing the proceedings of the United 
States Supreme Court and the bipartisan Durbin-Grassley bill 
that will televise the proceedings. There have been hearings 
and proposals in the past on televising all levels of the 
Federal courts, and although I have supported those proposals, 
I do recognize as a former prosecutor that there are more 
complicated factors when you are dealing with trials in the 
lower courts and that there should be discretion in those 
matters. But my focus today, our focus today, will be on the 
Supreme Court, and I would like to begin with a quote from the 
Court itself.
    In the Richmond Newspaper decision, which upheld the press 
and public's right of access to the courts under the First 
Amendment, Justice William Brennan observed: ``Availability of 
a trial transcript is no substitute for a public presence at 
the trial itself. As any experienced appellate judge can 
attest, the cold record is a very imperfect reproduction of 
events that transpire in the courtroom.'' I could not agree 
more. And while Justice Brennan was talking about actual 
attendance in a courtroom, I think his argument is just as 
persuasive with respect to allowing cameras in the courtroom.
    Although the Supreme Court is open to all Americans in 
theory, the reality is that public access is significantly 
restricted. There are only a few hundred seats available, some 
of which are reserved for specific individuals. That means 
visitors often get just 3 minutes of observation time before 
they have to give up their seats to the next person in line.
    Those friends of mine that have attended when their spouses 
or colleagues were arguing before the Supreme Court say it is 
an amazing experience, and we do not in any way want to lessen 
the experience. We would just like to expand that experience to 
other people.
    More importantly, over 99 percent of Americans do not live 
in Washington, DC, and, thus, their opportunity to visit the 
Court is limited, not only by the number of chairs in the room 
but by geography. And it should not be a once-in-a-lifetime 
experience to be able to see the Court in action.
    The impact of the Court's rulings has significant and often 
immediate consequences for real people. For proof, we do not 
need to look much further than landmark cases like Brown v. 
Board of Education, Loving v. Virginia, Miranda v. Arizona.
    In recent years, the Supreme Court has made some strides 
toward increasing transparency. Chief Justice Roberts enacted a 
new policy making audio recordings of oral arguments available 
on the Court's website, though not usually on the same day. But 
before coming to the Senate, you should know, in my time as the 
county attorney--and I speak from personal experience--I said 
that transcripts and audio recordings just are not the same as 
actually watching judges question lawyers live, as actually 
seeing the exchange of ideas and the expressions of the 
participants.
    That is why I find there to be a compelling need for 
regular televised coverage of the Supreme Court's oral 
arguments and decisions. The public has a right to see how the 
Court functions and how it reaches its rulings. It is the same 
argument for televising speeches on the Senate floor, press 
conferences by the President, or for that matter hearings like 
this one.
    Democracy must be open. Members of the public, especially 
those who do not have the time or means to travel to 
Washington, DC, should be able to see and hear the debate and 
analysis on the great legal issues of the day or, frankly, on 
any issues that come before the United States Supreme Court. 
And, of course, even if you live across the street from the 
Court, it is not a reasonable proposition to attend on any sort 
of a regular basis.
    So, in reality, public access to the Court is very limited, 
and I believe that greater access would be an important tool to 
increase public understanding of our system of law and 
demonstrate the judges' integrity and impartiality in engaging 
with lawyers from both sides.
    I have always felt that it was a shame that the 
overwhelming majority of Americans only get to see the Justices 
during their confirmation hearings in the Senate. I recognize 
that there are legitimate and deeply held concerns about 
televising Court proceedings or making them available on the 
Internet, and I would note that in reality those two mechanisms 
are becoming more and more intertwined and indistinguishable.
    We thought it was important to have several witnesses here 
today that would take the opposite side on this bill. That is 
why we are very glad that we have such a distinguished panel of 
people of differing viewpoints.
    But as I mentioned earlier, I think the more difficult 
concerns to address are at the trial court level, in part due 
to the presence of witnesses, jurors, and criminal defendants. 
Those issues are not present in the United States Supreme 
Court.
    As we will hear from one of our witnesses, the Supreme 
Court in Iowa has successfully adopted cameras in the 
courtroom, as have other State courts. Through the experiences 
of the State courts, two Federal circuit courts, and a pilot 
program running in 14 district courts around the country, we 
have had a chance to examine in real life the questions that 
opponents of cameras have raised, such as potential issues of 
due process; and we have seen that in some cases the concerns 
have not materialized as feared, and in other cases there have 
been ways to address the concerns.
    In terms of due process, it is important to note that the 
Senate legislation championed by Senators Durbin and Grassley--
I am a cosponsor as well as, I know, Senator Cornyn and several 
others--specifically provides that if a majority of Justices 
believe that any party's due process rights would be violated, 
the case would not be filmed. I think that is important.
    But for all the reasons I have stated, I believe the Court 
should no longer remain isolated from the average Americans who 
bear the real-world consequences of its decisions. I am 
confident that the Justices of our Supreme Court are capable of 
ensuring the dignity and the decorum of their courtroom and 
that the presence of cameras will not interfere with the fair 
and orderly administration of justice but, rather, it will make 
it stronger.
    With that, I will turn to Ranking Member Sessions for his 
remarks.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you. I thank the Chair, and you 
always do such a good job at these hearings and do allow a fair 
and open discussion, and I look forward to today's hearing.
    It is good to see Senator Specter back. He is teaching a 
course. He is writing the fourth book and practicing some law 
and is still active in the great issues of our time. He is one 
of the Senators I have most admired in my time in the Senate.
    This is what I am thinking about the matter, and I do not 
claim to have it all correct. The power of the Court, its role, 
its legitimacy, its moral authority, arises from the fact that 
it is removed from the hustle and bustle of everyday life, its 
passions, its ideologies, its politics. It is a place justice 
is done under the Constitution and laws of the United States. 
The Court seeks to discover the legal issue in the case. It 
then endeavors to decide that legal issue based on objective 
and long-established rules of interpretation and adjudication.
    It is a complicated process at times. It is most certainly 
not a forum for policy debate, and that is why judges where 
robes: to make clear their objectivity, their neutrality. The 
moral authority of a court I believe arises from its production 
of an objective judgment.
    The only thing that is important is the judgment, the 
order. That decision speaks. It is what is important. It speaks 
for itself. It speaks for those who rendered it, and their 
visage, their personality, or lack of it, is not what a court 
is about. A court is about its decision.
    They say we want to see that process in action, but I am 
not sure how you see a judgment being formed. To the extent 
that cameras in the courtroom undermine the sense of 
objectivity, they cause the courts to be perceived more as a 
policy or a political entity, the courts' moral authority has 
perhaps slightly been reduced.
    To the extent that our Justices worry about that, I think 
we should give them deference, whether or not it is 
constitutionally--whether or not Congress can constitutionally 
direct a court to have cameras or not, it seems to me that we 
should take very seriously their views about it and respect it. 
It is their domain. They do not tell us how to run our offices 
here.
    So I think that there are real concerns about the issues 
that are before us. I know Senator Grassley and you, Madam 
Chairwoman, and Senator Specter have strong views and have 
advocated those for years. But I remember when I became United 
States Attorney, Judge Dan Thomas, who was appointed by Harry 
S. Truman, gave me some advice about the good office I was 
about to enter. He said, ``If it ain't broke, don't fix it.'' 
So I am pretty pleased, really, with the effectiveness of the 
great court system in America, and I think we should be 
cautious about making significant changes.
    Thank you.
    Chairman Klobuchar. Thank you very much.
    Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you, Madam Chairman, for holding 
this very important hearing. Before I speak, I wanted to 
announce to my colleagues and to the witnesses that I am going 
to have to at 10:45 go over to the floor for a nominee that is 
up.
    Over 10 years ago, Senator Schumer and I introduced the 
Sunshine in the Courtroom Act to grant Federal judges the 
authority to allow cameras. Since that time, this bill has been 
brought before the Committee many times, and each time it has 
been scrutinized, improved upon, and reported out of Committee 
with broad bipartisan support.
    Today's hearing focuses upon a companion issue: whether or 
not the Supreme Court should permit cameras in its courtroom. 
Just yesterday Senator Durbin and I introduced what we call the 
``Cameras in the Courtroom Act of 2011,'' a bill which would 
require the Supreme Court to broadcast and televise.
    Like the Sunshine in the Courtroom Act, this bill has also 
been brought before the Committee on several occasions. It, 
too, was reported out favorably with bipartisan support and was 
championed by one of our witnesses today, my friend Senator 
Arlen Specter, who, as I told him privately, I am glad to see 
back in action again.
    My interests in expanding the people's access to the 
Supreme Court increased 11 years ago when the Supreme Court 
decided to hear arguments in the Florida recount case in the 
2000 Presidential election. Senator Schumer and I urged the 
Supreme Court to open the arguments to live broadcast. In 
response, the Supreme Court took the then unprecedented step of 
releasing an audio recording of the arguments shortly after 
they occurred. It was a sign of progress that gave the entire 
country the opportunity to experience what so few get to, and 
that is, the Supreme Court at work.
    Just last year, the Supreme Court began releasing audio 
recordings of its proceedings at the end of each week. This is 
another step in the right direction, and I applaud the Court 
for transparency and great access. But it is not enough. I 
believe that the nature of our Government and the fundamental 
principles upon which it was built require even more.
    Abraham Lincoln said, ``Ours is government of the people, 
by the people, and for the people.'' Our Constitution divides 
power through checks and balances. But most importantly, it 
makes the Government accountable to the people. The best way 
that we can ensure the Federal Government is accountable to the 
people is to create transparency, openness, and access.
    The vast majority of people do not believe that they have 
adequate access to the Supreme Court. We had a poll released 
last year; 62 percent of Americans believe that they hear too 
little about the workings of the Supreme Court. Two-thirds of 
Americans want to know more. What could be a better source of 
the workings of the Supreme Court than the Supreme Court 
itself?
    In 1947, the Supreme Court stated, ``What transpires in the 
courtroom is public property.'' Well, if it is public property, 
then it belongs to the whole public, not just the 200 people 
who can fit inside the public gallery.
    With today's technology, there is no reason why arguments 
could not be broadcast in an easy, unobtrusive, and respectful 
manner that would preserve the dignity of the Supreme Court's 
work and grant access to millions of Americans wishing to know 
more.
    My State of Iowa knows something about this. For over 30 
years, it has permitted the broadcast of its trial and 
appellate courts. In fact, I am pleased to welcome, as you all 
know, our Supreme Court Chief Justice Mark Cady today. He has 
come to share with this Committee his unique perspective of 
presiding over a court that broadcasts its proceedings. He is a 
strong proponent of transparency and continues to pioneer new 
ways to give the public greater access to the court system.
    Before we begin, I would ask for three things to be 
included in the record:
    First, a letter I wrote to Chief Justice Roberts asking for 
the health care law case to be televised. I would like to put 
that in the record.
    And the second thing and third thing to put in the record 
would be editorial opinions, one written by the second largest 
newspaper in Iowa, the Cedar Rapids Gazette, an editorial board 
stating its support of legislation; and the other, the 
editorial board of the Washington Post. Both express the belief 
that the Supreme Court must permit its proceedings to be 
broadcast. It is not often that America's heartland and the 
Washington establishment agree on too much, and so that brings 
a unique perspective to this issue.
    Thank you very much.
    Chairman Klobuchar. Thank you. Those will be included in 
the record.
    [The information appears as a submission for the record.]
    Chairman Klobuchar. I know Senator Durbin is going to join 
us at some point here and has a few words to say about his 
legislation, but I think we will start with our witnesses 
first, and we will ask that you stand so you can take the oath.
    Do you affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Specter. I do.
    Mr. Goldstein. I do.
    Justice Cady. I do.
    Judge Scirica. I do.
    Ms. Mahoney. I do.
    Chairman Klobuchar. Thank you very much. I am going to 
mention and go through and introduce each of you, and then we 
will have you each give your remarks for 5 minutes.
    First, as has been well acknowledged, Senator Specter is 
here with us. He served in this chamber for 30 years, the 
longest-serving Senator in his State's history. As Chairman of 
the Judiciary Committee, he was a tireless advocate for 
televising Supreme Court proceedings. He did not have to come 
back at this point. He has a lot of things going on, as Senator 
Sessions pointed out, but we were just honored that you would 
join us today and make, I think, your first official return to 
the Senate. So thank you so much for being here, Senator 
Specter.
    We also will hear from Tom Goldstein. Mr. Goldstein is a 
founding partner of Goldstein & Russell, an appellate firm 
specializing in Supreme Court litigation. Mr. Goldstein has 
argued before the Supreme Court 24 times--but who is counting? 
He also teaches Supreme Court litigation at Harvard and 
Stanford law schools and is the publisher of the popular SCOTUS 
blog, always the place to look for insights and rumors--true 
rumors, and things like that. But you cannot put that on your 
blog.
    Next we have Chief Justice Mark Cady of the Iowa State 
Supreme Court. Justice Cady served as an assistant county 
attorney, a district court judge, and as chief judge of the 
Iowa Court of Appeals before his appointment to the State 
Supreme Court in 1998.
    Next is Judge Anthony Scirica of the Third Circuit Court of 
Appeals, who has previously served as chief judge of that 
circuit and as a district court judge. Prior to his appointment 
to the Federal bench, Judge Scirica served as an assistant 
district attorney and State representative in Pennsylvania.
    Finally, Maureen Mahoney, who is a graduate of the 
University of Chicago Law School. She founded the Supreme Court 
and appellate practice in the Washington, DC, office of Latham 
& Watkins, where she works today, and from 1991 to 1993, served 
as a United States Deputy Solicitor General.
    We thank you all for joining us, and we will begin our 
testimony with Senator Specter.

 STATEMENT OF HON. ARLEN SPECTER, FORMER U.S. SENATOR FROM THE 
   STATE OF PENNSYLVANIA, AND ATTORNEY AT LAW, PHILADELPHIA, 
                          PENNSYLVANIA

    Mr. Specter. Madam Chair, Ranking Member Sessions, thank 
you for scheduling the hearing on this very important subject, 
and I am pleased to be back in this room where I have spent 
many interesting hours on the other side of the dais.
    I believe that it is vital that the public really 
understands what the Supreme Court does, and in our electronic 
age, the information comes from television.
    The Supreme Court decided in 1980 in a case captioned 
Richmond Newspapers v. Virginia that the public had a right to 
know what goes on in Court. It applied not only to the print 
media but to the electronic media.
    The Supreme Court decides all of the important cutting 
issues of the day. The Court decided who would be President in 
Bush v. Gore by one vote. The Court decides who lives through 
the abortion rights, who dies on the death penalty, and every 
subject in between.
    Not only does the Court affect the daily lives of all 
Americans, it has a tremendous impact upon the separation of 
powers, and I believe that Congressional authority has been 
very seriously eroded by what the Court has done on the 
decisions which they have decided and on the decisions on the 
cases which they have not decided.
    The authority of the Congress under the Commerce Clause was 
unchallenged for 60 years and then in Lopez and Morrison cut 
back. Chief Justice Rehnquist said in Morrison that the 
legislation was unconstitutional because of the Congressional 
``method of reasoning.'' I have often wondered what 
transformation occurs when the nominees leave this room, walk 
across the green, and are sworn into the Supreme Court.
    The Court is very ideologically driven at the moment, and I 
think the public needs to understand that. The case of the 
Affordable Care Act is coming up for Supreme Court review, and 
that is a case which touches every American, and it ought to be 
accessible to the public.
    The chamber holds only 250 people, and when the American 
people were polled on the subject, 63 percent said they thought 
the Supreme Court ought to be televised. When the other 37 
percent found out that the people could stay only for 3 minutes 
and the chamber was limited, the number rose to 80 percent.
    The highest court of Great Britain is televised. The 
highest court of Canada is televised. Most of the State Supreme 
Courts are televised.
    When the nominees appear before the Committee on 
confirmation, they speak about the favorable opinion of 
television, or at least an open mind. Somehow that position, as 
well as many others, gets a 180-degree reversal when they get 
to the Court.
    The issues which are coming up in the Affordable Care Act 
really ought to be subject to really close public scrutiny. I 
believe that the legitimacy of the Court itself is at stake for 
the people to understand what the Court does.
    There have been no good reasons advanced why not to 
televise the Supreme Court. There was an article which appeared 
in the National Law Journal by Tony Mauro. He attributes, as he 
puts it, ``the defiant stance of the Supreme Court'' is their 
view that they are entitled to be characterized as under 
exceptionalism. Justice Kennedy said, ``We operate on a 
different timeline, a different chronology, we speak a 
different grammar.''
    Well, that is not true in a democracy. I think Senator 
Sessions has it right when he says they consider it their 
domain. Well, it is not. It is the public's domain and it ought 
to be accessible to the public.
    Thank you.
    [The prepared statement of Mr. Specter appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much, Senator Specter.
    Mr. Goldstein.

STATEMENT OF TOM GOLDSTEIN, PARTNER, GOLDSTEIN & RUSSELL, P.C., 
                         WASHINGTON, DC

    Mr. Goldstein. Thank you, Madam Chair, other members of the 
Committee. It is quite an honor to be here with four panelists, 
all of whom have been mentioned seriously, as has the Chair, as 
a potential nominee to the Supreme Court. That is not a problem 
I am ever going to have.
    My perspective is as someone who does argue regularly 
before the Court and also, as you mentioned, operates a website 
that will have roughly 10 million visits this year relating to 
the Court where people come to find information about the 
Court.
    I appreciate the fact that you have taken the time to hold 
this hearing on an issue that everyone agrees is fantastically 
important. Just to follow up on Senator Specter's point about 
the health care case, one can only imagine that if the oral 
arguments in that case and the eventual decision were 
televised, then at least 50 million people would watch that in 
this country. It is so important, the contentious decision to 
pass that legislation in this body, the obvious serious 
questions about the statute's constitutionality, but only 100 
or 200 people will be able to be in the room for those oral 
arguments. And we are a visual culture. People watch 
television. That is how they get a lot of their news. And so it 
would make a big difference to have television there.
    You have my written testimony, and I will not repeat it, so 
I will just make three points:
    First, that televising proceedings would be good for the 
Supreme Court, not bad for the Supreme Court;
    Second, that I think you can pass a law constitutionally 
that requires the Justices to do this, but that I would not.
    I think that televising would be good for the Supreme Court 
because experience shows that sunshine increases public 
confidence. It does not decrease it. The Justices are 
tremendously serious people doing the public's work. The oral 
arguments are not scintillating. They are sometimes not very 
interesting. As someone who argues in front of the Court, I can 
say that. But they are incredibly important. The power to 
strike down a law passed by the people's representatives is the 
most serious power that exists under the community, in my 
opinion. And for the public to understand what is going on and 
to see the serious questions and the serious answers I think 
would make the public believe in the Justices and the good work 
that they are doing even more than it does now. And we are at a 
time when there is a flagging confidence in our democracy, and 
doing things to increase that confidence would be a good thing.
    Second, can you force them to do it? Nobody knows. There 
has never been a case like this, and it is always quite a 
challenge to pass a law that would require the Supreme Court to 
do something and then invite the Supreme Court to decide 
whether you can do it. The Justices would end up deciding that 
case in all likelihood. In my opinion, though, the answer is 
probably yes. These are public proceedings. You are not talking 
about televising the private deliberations. The Justices have 
already decided to let the public in. There is a significant 
First Amendment interest in the public being able to see what 
is going on. It is an important part of our governmental 
structure. And the very fact that it is part of the 
deliberations--the questions, the answers--suggests to me that 
there is a significant interest in having the proceedings be 
seen.
    I would, however, if you were going to do it, attach 
findings to the legislation that explains why it is that you 
have found that it does not disrupt the Court's proceedings, 
would not present a security risk, and the like. The 
legislation standing alone invites the Court--and a district 
court that would hear the case in the first instance--to reach 
its own judgments about that. So I think in hearings like this 
you would need to find facts that support the legislation.
    But, third, I just would not do this. I happen to agree 
with Senator Sessions. We should begin by recognizing that it 
is really easy to criticize the Court. It does not have a PR 
operation. It does not respond. And the Justices deserve 
praise. They are practically the only people in Washington 
trying not to get on television. They are just trying to do 
their jobs. And they have taken significant strides. They do 
not just say that they care about public access. They are doing 
things. They not only publish their opinions, they have created 
a website that is accessible in real time. They publish the 
transcripts of the arguments the same day. They now publish the 
audio in the same week. And they are headed in this direction 
on their own. And as Senator Sessions has pointed out, they 
have asked for some deference in the process of reaching this 
conclusions.
    And like other Courts before them, this has always been 
done, I think, pretty much by the judiciary voluntarily rather 
than the legislature telling them to do it. And the trajectory 
is that it is inevitable that television will be in the Supreme 
Court, and I would not provoke the constitutional controversy 
of requiring them to do it.
    Thank you.
    [The prepared statement of Mr. Goldstein appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much.
    Justice Cady.

STATEMENT OF HON. MARK CADY, CHIEF JUSTICE, IOWA SUPREME COURT, 
                        DES MOINES, IOWA

    Justice Cady. Senator Klobuchar, Madam Chairperson, members 
of the Committee, it is my pleasure and my honor to be with you 
this morning to tell you about Iowa's experience with video 
court proceedings.
    The Iowa Judicial Branch has been a leader in video and 
audio media coverage for courts. For more than 30 years, Iowa 
courts have allowed audio, photographic, and video coverage of 
our court proceedings.
    In 1979, following a thorough study, the Iowa Supreme Court 
adopted rules to allow for expanded media coverage of court 
proceedings in both trial and appellate courts. These rules are 
carefully designed to prevent disruption of the court hearings 
and to safeguard the rights of litigants to a fair, impartial 
trial and appeal; and in summary, Iowa rules provide for the 
media to file first a request to cover a media court coverage 
trial. That request is filed with a media coordinator who then 
submits it to the court. Litigants are then given a right to 
object to the coverage. The media must pool its equipment, and 
the rules prohibit coverage of certain sensitive subjects and 
segments of a hearing.
    Our rules have worked very well. They limit the number of 
cameras in the courtroom, require the cameras to be stationary 
so as not to distract from the proceedings, and they ensure 
that the judge always has control of the process. Our judges 
rarely have problems with this expanded media coverage, and 
journalists who cover our courts respect the rules and the 
rights of litigants.
    The process has worked so well that it has become expected. 
Expanded media coverage of trials, especially high-profile 
trials, is a matter of routine. Expanded media coverage of 
appellate hearings is less common. I estimate that we might 
have expanded media coverage in perhaps one or two arguments a 
year.
    But in addition to our procedure for expanded media 
coverage of the courts, the Iowa Supreme Court streams all of 
its oral arguments online. We also then archive the videos for 
later viewing. Our court began recording its oral arguments and 
making them available online in 2006, and we have continued 
that practice today.
    As you know, the strength of our democracy--indeed, any 
democracy--requires a well-informed citizenry. This principle 
holds true for each branch of Government. The strength and the 
effectiveness of our court system depends on the confidence in 
the courts. As former Supreme Court Justice Thurgood Marshall 
said, ``We can never forget that the only real source of power 
that we as judges can tap is the respect of the people.'' That 
respect obviously depends on how well we do our job of 
administering justice. But it also depends on the public's 
understanding of our job and the information the public has 
about how we are doing our job.
    Our experience in Iowa has shown that media coverage of our 
courts tends to boil down at times to just a few seconds of a 
video of a high-profile trial with a report of the proceedings 
filtered by a reporter. And so what the public gets is simply a 
snippet of the process. Although we would like to allow more 
coverage of our court arguments, we believe the media in Iowa 
provides a great service. Their efforts increase the visibility 
of our courts and our court procedures.
    At the same time, it has become easier for courts to direct 
them to our proceedings through modern information technology. 
And with our online video of court proceedings, more people 
watch our courts, and our experience bears this out.
    I think I want to leave you with simply one anecdote, 
perhaps best described. There has been a strong interest in our 
online arguments in our court proceedings, and this has been a 
tremendous surprise, and it has revealed an opportunity--an 
opportunity for greater public understanding. And my 
observation and conclusion is this: Cameras expose courts to 
what they do and what they are--a proud institution of justice. 
The more the public sees our courts operate, the more they will 
like and the more they will respect our court system. And this 
was vividly shown to me a few months ago when the Iowa Supreme 
Court heard arguments in a community outside our seat of 
government in Des Moines. The case involved a criminal 
violation of an ordinance prohibiting local Mennonite farmers 
from driving their steel-wheeled tractors on hard surfaced 
roads. The issue in the case was whether the ordinance violated 
the First Amendment. Our arguments in this community drew about 
350 people from the area. Afterwards, at a reception, the 
father of the young Mennonite boy who was the subject of the 
prosecution patiently waited to shake my hand. And when he did, 
he looked me in the eye and he said this: ``Having seen your 
court work, it seems like a pretty honest thing.'' Our courts 
are an ``honest thing,'' and cameras can help show it to the 
public.
    I would now like to briefly pause so we could watch a short 
excerpt from one of our court hearings.
    Thank you.
    [The prepared statement of Justice Cady appears as a 
submission for the record.]
    Chairman Klobuchar. Well, certainly, since this is about 
cameras in the courtroom, we will allow the showing of that. 
Thank you.
    [Videotape played.]
    Justice Cady. Thank you.
    Chairman Klobuchar. Well, we want to know what happened in 
the case, but we will ask you later.
    OK. Next, Judge Scirica.

   STATEMENT OF HON. J. ANTHONY SCIRICA, CHIEF JUDGE, UNITED 
 STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, 
                          PENNSYLVANIA

    Judge Scirica. Chairman Klobuchar, Ranking Member Sessions, 
and distinguished members of this Committee. Good morning, and 
thank you for inviting me here to discuss these proposals for 
televising the oral arguments of the Supreme Court. I do not 
speak for the Court, but I am pleased to offer my own 
perspective, which is shaped by my service in the judiciary.
    At issue is whether televising oral arguments will affect 
the integrity of the judicial process. In ways we may not fully 
comprehend or cannot always anticipate, communication through 
different media can affect how an institution functions.
    You will hear a broad range of views with thoughtful 
arguments on both sides. Reasonable people disagree about the 
best course. But let me make three general points that I 
believe merit consideration: transparency, accessibility, and 
respect among the branches that allows each to govern its own 
deliberations.
    First, transparency. The most important work of the Supreme 
Court, deciding the difficult cases it hears, is transparent. 
The Court explains its decisions in detail. Traditionally this 
was done through the printed word; now it is done through the 
electronic word as well.
    As you know, only the Court's opinions are binding 
precedent on questions of Federal law. This process of reasoned 
deliberation confers legitimacy and permits litigants and the 
public to evaluate for themselves the soundness of the Court's 
judgment.
    Second, over time the Supreme Court has become more 
accessible and more transparent. It has embraced the Internet 
to enhance access to its work. Lawyers' briefs, the Court's 
opinions, transcripts of oral arguments, audio recordings of 
oral arguments are all available on the Court's website free of 
charge. Its opinions are online as soon as the decision is 
announced.
    Third, each of our three branches of Government is 
responsible for its own deliberations and self-governance. This 
separation of powers underscores the considerable latitude that 
should be afforded each branch in determining its own internal 
procedures. Deciding whether to televise oral arguments at the 
Supreme Court goes to the heart of how the Court deliberates 
and conducts its proceedings.
    Those of us outside the Court all have individual and 
institutional interests in the decision. But we do not have the 
responsibility to decide these difficult cases of national 
importance. The Justices do. They are the ones most familiar 
with the operation of the Court. They understand the dynamics 
and nuances of Supreme Court oral arguments and how that 
exchange affects their deliberations. They can best evaluate 
whether the introduction of cameras might affect the quality 
and integrity of the dialog with the attorneys and, just as 
important, the dialog among the Justices.
    There is a common bond between members of the Supreme Court 
and Members of Congress: Each serves as a trustee of the long-
term interests of an essential institution in our country. The 
Court has proceeded cautiously in evaluating whether to 
televise oral arguments. This should give pause when seeking to 
impose a decision on a coordinate branch of Government.
    A Congressional mandate that the Supreme Court televise its 
proceedings is likely to raise a significant constitutional 
issue. Lawyers and Members of Congress have expressed this 
possibility. But there should be no need to test the 
constitutional separation of powers. There is a compelling 
reason for caution apart from avoiding a possible 
constitutional question.
    The co-equal branches of the Federal Government have long 
respected each branch's authority and responsibility to govern 
its own internal affairs and deliberations. This history is 
deeply rooted in the American political and constitutional 
tradition. Congress has honored this legacy by guarding 
judicial independence and self-governance. These long-standing 
principles of comity among the coordinate branches of 
government--that is, mutual respect for each branch's essential 
functions--counsel moderation and deference.
    It is not unreasonable to defer to the Court on how it 
conducts its deliberations and speaks to the American people. 
The Court should be afforded a measure of comity in its own 
governance to decide for itself whether, when, and how cameras 
should be present during its oral arguments.
    Thank you very much, Madam Chair.
    [The prepared statement of Judge Scirica appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much.
    Ms. Mahoney.

STATEMENT OF MAUREEN MAHONEY, OF COUNSEL, LATHAM & WATKINS LLP, 
                         WASHINGTON, DC

    Ms. Mahoney. Good morning. I want to thank the Chair and 
members of the Committee for giving me the opportunity to 
testify today in opposition of the legislation that has now 
been proposed.
    I come to this Committee having served 30 years as a 
Supreme Court advocate. I have argued 21 cases before the 
Court, and I have had the privilege of working with the Court 
and the Judicial Conference on the rulemaking process. So I 
have come to know them and respect them.
    A few years ago, Justice Kennedy testified before Congress, 
and he expressed the hope that Congress would accept the 
Court's judgment on the issue of televised arguments. I would 
like to highlight four reasons why Congress should respect 
Justice Kennedy's request.
    The first is that there is a serious reason to believe that 
legislation overturning the Supreme Court's policy on this 
issue would be unconstitutional. I agree with Tom Goldstein 
that the issue is debatable. It certainly has not been settled. 
But I think the text of the Constitution, the doctrine of 
separation of powers, and Congress' historical practices all 
point in the direction that this legislation would be 
unconstitutional. It would, after all, be an effort to strip 
the Court of its historic authority to decide how to control 
proceedings in its own chamber.
    When you look at the text, Article III vests the judicial 
power of the United States in the Supreme Court, not in 
Congress. Congress did not create the Supreme Court. The 
Constitution did.
    From the earliest days of the Republic, the Supreme Court 
has made clear that the judicial power does include the 
authority to adopt rules necessary to conduct its proceedings 
and to protect the integrity of its decisionmaking processes. 
Although Congress surely has some power to adopt laws that 
affect the Court, it cannot, as the Court says, ``impermissibly 
intrude on the province of the judiciary,'' or disregard a 
``postulate of Article III'' that is ``deeply rooted'' in the 
law. Those concerns are directly implicated here. It would be 
difficult to describe a statute that strips the Court of its 
deeply rooted power as a mere administrative regulation, 
especially when it is done in the context of a disagreement 
with the Court about how it has come down on this issue.
    History also lends support to this conclusion. From 1789 to 
the present, Congress has always left the Supreme Court free to 
adopt its own rules governing its proceedings without any 
oversight or legislative approval.
    Second, any benefit from the televised proceedings is not 
great enough to warrant a constitutional confrontation, and I 
think Tom Goldstein agrees with me on this issue. I would just 
say on the benefit side, this is not a one-sided debate. As 
Justice Stevens has put it, this is a ``difficult issue.'' 
Those are his words. It is easy to posit some educational 
benefits, but it is all about what are the incremental benefits 
once the public already has full access to the audio and the 
transcripts. And Justice O'Connor, who has been very devoted to 
public education on the judicial branch and the Supreme Court, 
said that, in her view, televising Supreme Court proceedings 
``wouldn't enhance the knowledge [of the public] that much'' 
due to the availability of other information, and she notes 
that arguments are ``technical and complicated.''
    Third, I think television poses genuine risks to the 
Court's decisionmaking processes, and we just need to look at 
what a few of the Justices have said and have told Congress.
    First, let us look at what Justice Souter said. In 1996, he 
told Congress that the case against cameras is ``so strong'' 
that ``[t]he day you see a camera coming into our courtroom it 
is going to roll over my dead body.'' And it bears emphasis 
that Justice Souter based this view on his own personal 
experience when he was sitting as a Justice of the New 
Hampshire Supreme Court. He said that in his experience, 
television cameras definitely ``affected [his] behavior,'' that 
``lawyers were acting up for the camera'' by ``being more 
dramatic,'' and that he was ``censoring his own questions.'' 
Similar concerns have been shared by a large number of Federal 
appellate judges who participated in a pilot project of 
televising oral arguments a number of years ago.
    And let me just run through what the other Justices have 
said on this topic about how it would affect their 
decisionmaking process because I think it is essential that the 
Committee be aware of this.
    Chief Justice Roberts has said that ``grandstanding'' may 
be expected to increase.
    Justice Kennedy has said that television would ``alter the 
way in which we hear our cases, the way in which we talk to 
counsel, the way in which we talk to each other, the way in 
which we use that precious hour.''
    Justice Thomas says television would have an ``effect on 
the way the cases are actually argued'' and ``undermin[es] the 
manner in which we consider the cases.''
    Justice Alito said that television would ``change the 
nature of the arguments'' because the participants' ``behavior 
is changed'' when proceedings are televised.
    Justice Breyer sees ``good reasons'' for television, but he 
counsels caution because there are also ``good reasons against 
it.''
    And Justice Stevens recognized potential benefits but said 
he ``ultimately came down against it,'' because it might 
negatively affect the arguments and the behavior of the 
Justices and lawyers.
    And, finally, I would just like to say that I would like to 
echo the sentiment that the Court is in the best position to 
assess the impact of electronic media on its proceedings, and 
it can be trusted to continue to give the issues careful 
consideration.
    As Justice Kennedy has explained, it is the Justices, not 
Congress, who ``have intimate knowledge of the dynamics and the 
needs'' of the Court. And when the shoe was on the other foot, 
the Supreme Court refused to second-guess the Senate's 
procedures for conducting impeachment trials. A Federal judge 
who was being impeached came to the Court and challenged those 
procedures, and the Supreme Court said that the Senate had 
authority to determine for itself what procedures would govern. 
And the same should be true here.
    The matter has not been finally decided. The Court, as one 
of the witnesses explained, has actually altered its policies 
in cases of high public interest, as it did in Bush v. Gore, 
and it now has requests pending before it about the health care 
cases. There is ample time to consider those.
    So, in summary, I would just urge the Subcommittee to stay 
its hand. Justice Kennedy informed Congress that ``we feel very 
strongly that this matter should be left to the courts,'' and 
that view is entitled to respect under our constitutional 
system of governance.
    Thank you.
    [The prepared statement of Ms. Mahoney appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much, Ms. Mahoney.
    I did want to, before I turn it over for questions here, 
also quote our newest and youngest member of the Court, Justice 
Elena Kagan, who recently said--in fact, was asked at our 
Supreme Court confirmation hearing if she favored televised 
proceedings. She said she did. But she recently said in August, 
``If everybody could see this, it would make people feel so 
good about this branch of Government and how it is operating.'' 
And I actually got that out of an article recently in the New 
York Times by Ken Starr, Judge Ken Starr, former Solicitor 
General. I am going to put that in the record as well.
    [The article appears as a submission for the record.]
    Chairman Klobuchar. I also want to add that I spoke with 
Justice Souter for about half an hour about his views, and I 
think you expressed them well. But I also talked to Ken Starr, 
who obviously had a different view. And I am going to turn it 
over to two of my Republican colleagues who have time 
commitments, so I am going to have them go first here. But I 
did want to note two things from Ken Starr's editorial in the 
New York Times where he talks about the people that would like 
to be able to see this. Whether they understand every 
procedural question or not, Ms. Mahoney, I am not sure is 
relevant because I think they understand a lot of what is going 
on. He points out older Americans affected by health care 
decisions would like to see an argument. He talks about women 
or other groups affected by important class action cases like 
the Wal-Mart discrimination case last term.
    So I think we have to remember that while they may not 
understand every single detail, they understand the bulk of 
what this is about.
    I turn this over to my co-chair, Senator Sessions, and then 
over to Senator Lee, who I know has a time commitment.
    Senator Sessions. Thank you very much.
    I do think there is a matter of respect, Ms. Mahoney. I 
remember, perhaps Senator Specter was part of the little 
Committee that went to Chief Justice Rehnquist during the 
impeachment proceedings to ask him how the Senate should 
proceed. And I so vividly remember, he said, ``Well, you are 
the Senate. You decide how to proceed.'' And he would not give 
any advice. The idea was to get some advice about how the 
Senate should conduct its business, and he said that.
    Judge Scirica, oral argument in the court of appeals is 
optional. To what extent is it traditionally optional in the 
Supreme Court and changing the rules might alter the amount of 
oral argument that occurs?
    Judge Scirica. In most of the courts of appeals throughout 
the country, Senator, oral argument is not held in all cases. 
In cases where it is held, eight of the circuits put their oral 
arguments on audio, usually within the same day. Five do not. 
But some of those are presently considering doing so.
    If the Supreme Court were to change its view, obviously it 
is something I think the courts of appeals would take into 
account. But it is worth noting that since the experiment from 
1990 to 1994 in the lower federal courts, only two of the 
federal courts of appeals have allowed videoing oral argument. 
The Ninth Circuit does it a great deal. They do it in all their 
en banc cases and on a case-by-case basis on other cases. The 
Second Circuit, the other court of appeals, does it quite 
infrequently. They have only done it four times in the 4 years 
between 2006 and 2010.
    Senator Sessions. One of the things that bothers me a 
little bit--I do not know that it is a defining thing, but in 
the letter that was written, there was a quote about older 
people might want to be watching this. You have, of course, a 
complete record of what happens. It is audio transcribed, and 
it is typed and produced. But I guess my thought is that we do 
not want to be in a position in which courts feel they are 
pressured by one group or another group to render a decision.
    Senator Specter, Justice Kennedy testified a few years ago 
here, in 2007, ``The majority on my Court feel very strongly, 
however, that televising our proceedings would change our 
collegial dynamic and we hope that this respect that separation 
of powers and balance of checks and balances implies would 
persuade you to accept our judgment in this regard. . .We are 
judged by what we write. . .We think it would change our 
dynamic. We feel it would be unhelpful to us. . .We have come 
to the conclusion that it will alter the way in which we hear 
our cases, the way in which we talk to each other. . .''
    I thought that put forth a pretty good statement of the 
feeling on the Court. I think it is a legitimate feeling 
produced within integrity. How do you feel the Senate should 
consider overturning that and imposing our view of how the 
courtroom in the judicial branch should be conducted?
    Mr. Specter. Well, I think the public's right to know and 
the benefit of an informed citizenry vastly outweigh what you 
quote Justice Kennedy as talking about collegial dynamics.
    Justice White boiled it down in the article that I referred 
to by Tony Mauro, which I would like to have made a part of the 
record, saying that the Court's view of not televising, ``It's 
very selfish, I know.''
    [The information referred to appears as a submission for 
the record.]
    Mr. Specter. I believe that if the Court were televised, 
there would be an understanding and an accountability, and let 
me be very specific. It is hard to get into sufficient detail 
in the brief time allowed.
    The Court came down with a monumental decision in Citizens 
United which allows unlimited anonymous corporate expenditures. 
Yet a book recently published by Professor Larry Lessig of the 
Harvard Law School called ``Republic, Lost,'' he goes to a 
critical part of Justice Kennedy's fifth vote which decided the 
case in a 5-4 decision and points out that when Justice Kennedy 
made a conclusion that unlimited anonymous corporate 
expenditures would not affect citizens' participation in the 
electoral process, he had absolutely no factual foundation.
    The Congress, under separation of powers, has the authority 
to find the facts, and then there is need only for a rational 
relationship between what Congress finds factually and the 
legislation which Congress enacts.
    The Court in Citizens United disregarded, as Justice 
Stevens pointed out, a 100,000-page record and literally yanked 
the rug out from Congress where Congress had relied upon the 
Austin case in enacting McCain-Feingold. Nobody really 
understands what is happening in these cases, and it is hard to 
have it conveyed even if there is television. But at least that 
is an enormous start.
    So I would consider the collegial dynamics that Justice 
Kennedy refers to, but I believe it is vastly outweighed by the 
public interest and transparency. As Brandeis said, sunlight is 
the best disinfectant.
    Senator Sessions. Well, I would just say that you express 
your policy view well. It is obvious the Court has a different 
policy view in whether or not we should overturn that is the 
question before us, I suppose.
    Mr. Specter. Well, Senator Sessions, I have been battling 
this issue for decades. Three times this full Committee has 
reported a bill out. One of the real sad parts about leaving 
the Senate was not being able to carry the fight forward. But 
now that Senator Durbin has joined the panel, if I may have his 
attention, he promised to carry on the battle in my absence. I 
am precluded under the ethics rules from asking Senator Durbin 
what he has done, except when I testify before the Committee.
    [Laughter.]
    Senator Sessions. And before the camera, and you are 
holding him to the promise he gave you. Is that right?
    Mr. Specter. You bet.
    Madam Chair, may I just add that I have a commitment to 
make the 12 o'clock train, so I have to excuse myself before it 
is all over.
    Senator Sessions. Thank you very much.
    Chairman Klobuchar. Very good. We will make sure that 
Senator Durbin has that opportunity so that you can ask him 
questions, Senator Specter. But we are going over to Senator 
Lee first.
    Senator Lee. Thank you, Madam Chair. I really appreciate 
you accommodating my time constraints, and I want to thank each 
of our panelists for being here today.
    I come at this issue with a certain internal conflict that 
I am hoping you can help me resolve today, and in many respects 
you have helped me resolve that. The conflict of which I speak 
stems from the fact that I am an unapologetic, open law geek. I 
started attending and watching Supreme Court arguments at the 
age of 10. I listen to oyez.com sound recordings of oral 
arguments from the Supreme Court as background music when I am 
going about my work. And on one level there is absolutely 
nothing that I would love more than to watch Supreme Court 
arguments on television. That would be the greatest Christmas 
gift that I can imagine receiving.
    And, on the other hand, at the same time, I feel that as a 
coordinate branch of Government the Supreme Court is entitled 
to a very significant degree to determine how it operates, and 
this does lead us to some conflict, but I appreciate the 
testimony that has been given today and the insight that you 
have provided for us.
    We have here assembled a very distinguished panel. I have 
seen Maureen Mahoney argue before the Supreme Court. I have 
seen Tom Goldstein argue before the Supreme Court. I have not 
seen Senator Specter argue before the Court, but I understand 
that it has happened. And as a law clerk, I saw Judge Scirica 
preside over many appellate arguments. And so it is great to 
have each of you here.
    But I would like to direct my first question toward Ms. 
Mahoney. I would imagine that in the following scenario some 
heartburn would be felt. Imagine that at some future point 
Congress decided that although today most of our proceedings 
are televised, including most of our Committee processing--at 
least they can be, if anyone wants to televise them--at some 
future point that Congress decided that some Committee hearings 
would not be open to television cameras. That is sometimes the 
case today. Some of our Committee hearings are, in fact, closed 
to the public. Those are rare, but it may be the case that some 
that, while not closed to the public, would no longer be 
televised.
    In that circumstance suppose further that the courts got 
involved, that the courts looked at it and we ended up with a 
decision from the Supreme Court of the United States saying, in 
effect, we have examined the Constitution, and we have found 
emanations and penumbras flowing out of various free-standing 
constitutional provisions and concluded that from those 
emanations and penumbras we can conclude only that it is 
unconstitutional for the Senate not to allow all of its 
proceedings to be televised, whether Committee or floor or 
voting or otherwise.
    How would that be distinguishable from us telling the 
Supreme Court that it must open up its oral arguments to 
television?
    Ms. Mahoney. Well, it is well settled under the 
Constitution that it is the Supreme Court's responsibility to 
say what the law is. Just to quote Federalist Paper No. 78, 
whenever a particular statute contravenes the Constitution, it 
will be the duty of the judicial tribunals to adhere to the 
latter and disregard the former.
    So it is just settled that the Supreme Court gets the last 
word, which is really one of the reasons why I think it would 
be a mistake for Congress to go down this path because it would 
create the potential for a constitutional confrontation between 
the branches.
    Senator Lee. And regardless of who gets the last word as a 
practical matter, as far as----
    Ms. Mahoney. Why is it different as a matter of First 
Amendment? Well, for one thing, this is--you are doing an 
elective responsibility. You are elected by the people. The 
Constitution was designed to set the judiciary apart and 
independent. They are not elected. The whole notion of life 
tenure was to preserve their independence and, in fact, to 
insulate them from popular opinion. That is not true with the 
way that the legislative branch is structured.
    But, again, going back to the Nixon case, impeachment 
proceedings are public but, nonetheless--the Court said it was 
up to the Senate to decide what procedures it would use for 
those proceedings and the Court would not second-guess that. 
They would only second-guess it if, in fact, the Constitution 
required a different conclusion.
    Senator Lee. Part of what I understand you to be saying is 
that, regardless of what we can do as a matter of raw political 
power, there is a question of what we should do.
    Ms. Mahoney. That is certainly the case, but I also think 
there is a serious question about whether you can do it. A very 
serious question.
    Senator Lee. OK. Senator Specter, how do you respond to 
this point about the appropriateness of our telling a 
coordinate branch of Government how to operate?
    Mr. Specter. The Congress has the authority to handle 
administrative matters legislatively. For example, the Congress 
decides what a quorum is on the Court--six. The Congress 
decides how many Justices there will be on the Court. Recall 
the famous Court-packing plan. The Congress has the authority 
to tell the Court when it begins its arguments--on the first 
Monday in October. Congress has the authority to tell the Court 
what cases it should hear. And I believe that the Congress has 
the authority to tell them what cases--if they ought to be 
televised.
    It is true that the Court has the last word, and I believe 
that is the way it should be. The finality of the Court is 
vital, and the independence of the judiciary is vital. That is 
the backbone of the rule of law in our Republic.
    So the Court can come back and say it is a violation of 
separation of powers. I frankly do not think they would because 
you have very strong public opinion in favor of having the 
Court televised. And in the final analysis, the Court does 
listen to the public, and there are very strong arguments. I 
think, for example, in the 1980 decision that I referred to, 
there is not equal protection of the law. When the newspaper 
people could come in, the Court complains about news clips 
which were taken out of context. Well, that is what you have, a 
quotation. I think you may have been victimized by that some 
time in the past. But that is a free press. And I believe that 
it would really benefit this country to have that kind of 
accountability and that kind of understanding.
    If I may add just one additional thought, the Court has 
been expanding its authority in a variety of ways. Since 
Maryland v. McCullouch, the rational basis for legislation was 
the test. In a case captioned the City of Boerne in 1997, they 
came up with a new test of what is congruent and proportionate, 
and nobody knows what that means. In the Americans with 
Disabilities Act within the past decade, two cases were decided 
entirely differently-one Garrett v. Georgia involving 
employment, and one Lane v. Tennessee on accessibility. And 
Justice Scalia said that that test was a ``flabby test,'' as he 
put it, to enable the Court to engage in policy decisions. And 
I think the Court does engage in policy decisions, and I think 
the ideological tilt of the Court, both ways--the Warren Court, 
the Rehnquist Court. And I think the public needs to know, and 
I think it is a restraining influence if the public knew.
    And we know that the Court reflects the changing values in 
a society. Well, the public has to know what the Court is doing 
in order to be able to express those values.
    Senator Lee. Fair enough. Thank you. I see my time has 
expired. Thank you very much, Madam Chair.
    Chairman Klobuchar. Thank you very much, Senator Lee.
    I am going to just ask one quick follow-up here before 
turning it over to my colleagues, and then I will do my 
questions at the end.
    Ms. Mahoney made the argument that it is not 
constitutional, this bill, to require the Supreme Court, with 
many exceptions for due process, to televise. And I wondered, 
Mr. Goldstein, while you are not a fan of having Congress do 
this, you would rather have the Court do it themselves, and I 
think--how long have you been working on this, Senator Specter, 
trying to get the proceedings televised? How many years?
    Mr. Specter. How many years?
    Chairman Klobuchar. Yes.
    Mr. Specter. Twenty-five.
    Chairman Klobuchar. Twenty-five years.
    Mr. Specter. Give or take five.
    Chairman Klobuchar. Give or take five. So you can see, Mr. 
Goldstein, why hoping that this will just happen gets somewhat 
frustrating. So could you just give the argument for why it is 
constitutional before I turn it over to my colleagues, building 
on what Senator Specter spoke about?
    Mr. Goldstein. Sure. It is my pleasure, and thank you for 
the opportunity. As Maureen Mahoney says, Article III of the 
Constitution vests judicial power in the Supreme Court, which 
is the only Court that the Constitution requires. But as 
Senator Specter points out, there are lots of pieces of the 
administration of the Supreme Court, from things as simple as 
budgeting to more detailed points, like what is a quorum, what 
the scope of the Court's jurisdiction is, and the like, that 
this body has a lot to say about under the Constitution. And 
there is no clear line here.
    I do think one thing that would be on the other side of the 
line that clearly would be unconstitutional is Congress could 
not pass a law that says the Justices are having their private 
deliberations, but we are going to put a camera in there 
because we think sunshine is the best disinfectant. That would 
really be what is classically a private part of what the 
Justices are doing.
    To me, the critical point is that these are public 
proceedings, and it seems to me that once the Justices make the 
threshold decision that these are going to be open to the 
public, absent some compelling reason to believe that it really 
would be distortive of how oral argument works, that is not--
what would end up being characterized as whether it is an undue 
interference in the operation of the Court. And given with 
extraordinary deference to the Justices about their view about 
how this would affect the proceedings, given the experience of 
other courts, it seems to me hard to conclude that this would 
really undermine how the Court is operating. I would not go 
there. As you indicated, I do not think it is a step that is 
necessary. I think that one compelling thing that this body 
could do would be to pass a unanimous resolution urging the 
Court to do it, to give them a sense of what the Senator has 
pointed to as the great public interest in televised 
proceedings. But with no promises, I think that ultimately the 
legislation would be upheld.
    Chairman Klobuchar. Very good. So what you are saying is 
that if suddenly the legislation were that the private 
proceedings be made public, that would be a different matter?
    Mr. Goldstein. Yes.
    Chairman Klobuchar. But when you are dealing with something 
that is already public and what you are really trying to do is 
expand the room to Iowa and other places. Very good. Thank you.
    Senator Blumenthal.
    Senator Blumenthal. I am going to yield to Senator Durbin.
    Chairman Klobuchar. Very good. Senator Durbin.
    Senator Durbin. Thank you, Senator Blumenthal.
    Senator Specter, it is great to see you again. And I think 
it is unprecedented, but it is the first time a witness has 
asked a Senator a question, and I believe because of your many 
years of great service in the Senate, you are entitled to that. 
And the question is: What are we doing to pass the bill that we 
both like so much? We are holding a hearing and you came.
    [Laughter.]
    Senator Durbin. And that is an important development. I 
thank you for being here, Senator Specter.
    Ms. Mahoney, I guess one of the things that troubles me is 
part of your testimony that suggests that the public just 
cannot understand the complexity of the arguments, the 
technical aspects that are often brought before the Court, and 
because we cannot ``solve the problem of educating young 
people,'' we really should not complicate their lives by 
exposing them to these complex arguments.
    I do not think that that kind of conclusion is in the 
spirit of what we call democracy. I think in the spirit of 
democracy, educating the people and giving them exposure to 
even the most technical arguments is considered appropriate. 
When you leave a monarchy, you really get down to a level where 
people who are chosen for public office are held to some 
standard of accountability. So tell me, if we allow the public 
to sit in the Supreme Court and listen without any proof that 
they have college degrees or law degrees, and if we allow the 
press to cover the proceedings without any guarantee that a 
Supreme Court Justice may make certain that the question that 
is posed would look good in tomorrow's newspaper, what is the 
difference here?
    Ms. Mahoney. If I could first say, Senator, that I did not 
say that there was no benefit to the public. This is a more 
complicated, more difficult issue. It is what are the 
incremental benefits. And it was Justice O'Connor who said that 
arguments would not enhance the knowledge of the public that 
much, and the reason----
    Senator Durbin. But you quote it in your statement.
    Ms. Mahoney. Yes, I was quoting Justice O'Connor, and I 
think that is important because I think we all know she cares 
deeply about these educational issues. And here the question 
is: What is the incremental benefit? You have to weigh the 
incremental benefit against the cost.
    If there was no risk to the Court's deliberative process, I 
would agree with you. We should go ahead and televise all the 
proceedings. Hardly anyone would probably watch. But so what?
    And the other thing is that the audio is available. As 
Senator Lee was saying, he can listen to the entire audio, and 
does so.
    Senator Durbin. As released by the Court, but I----
    Ms. Mahoney. You can hear every word----
    Senator Durbin.--would just say----
    Ms. Mahoney.--of every argument, Senator.
    Senator Durbin. Ms. Mahoney.
    Ms. Mahoney. Yes.
    Senator Durbin. The point I am getting to is this--and we 
live a little different life than you do. As I travel around 
Illinois, I continue to be amazed, and even amused, by the 
number of people who watch C-SPAN night and day. I do not know 
if these are insomniacs or people who are, you know----
    Ms. Mahoney. Sure. Right.
    Senator Durbin. I will not go any further. But whatever 
their motive may be, they not only know who we are and what we 
are saying and what we have just argued on the floor of the 
U.S. Senate; I will have friends at home--I have one in 
particular, Joe Kelly, a World War II veteran, who says, 
``Bernie Sanders looked pretty sad this week. Is something 
wrong? ''
    Ms. Mahoney. Sure.
    Senator Durbin. Honestly, they will watch closely and 
carefully and draw their own conclusions about the Government 
that they have elected.
    Ms. Mahoney. Right.
    Senator Durbin. I think it is a healthy thing.
    Ms. Mahoney. It can be, and C-SPAN I think sometimes plays 
the audios and they can run pictures of the Justices if they 
want.
    Senator Durbin. So why isn't it healthy that we take this 
to the next logical step? Why are we drawing these boundaries 
and saying when it comes to televising or putting these matters 
on the Internet, it is somehow a leap too far?
    Ms. Mahoney. Because we have to ask what is the impact on 
the deliberative process in the Supreme Court, and the people 
who know the answer to that best are the Justices who ask the 
questions and listen to the answers and observe the behavior of 
lawyers and decide how it influences their own decisionmaking 
process. If they believe as a collegial body that these 
benefits are substantial and that the risks to their process 
are not significant, they will allow television in the 
courtroom. And that day may come.
    Senator Durbin. Ms. Mahoney, first, let me correct the 
record. It was Joe Flynn and not Kelly. It was another good 
Irish name, but it was Joe Flynn who raised the question about 
Bernie Sanders' disposition.
    But, Senator Specter, as you listen to this, why are we 
intruding--I am giving you a soft ball here. Why are we 
intruding into the proceedings of the Court and their own 
decorum in establishing a standard that there will be 
television cameras in the courtroom?
    Mr. Specter. Because it is so important for the public to 
know how its Government functions, and because the Supreme 
Court affects the lives of Americans in such great detail. You 
cannot do much more than elect a President by a single vote, 
and you cannot have a more important decision than health care. 
And the Citizens United case, when exposed to sunlight, just 
does not make any sense. It is based upon an assumption without 
any facts to back it up when you come right down to it. It is 
illustrated by Professor Lessig's book. It is illustrated by 
Justice Stevens' dissent. And the Supreme Court does reflect 
the changing values of a society.
    Senator Durbin. Well, let me ask you this, Senator: I 
believe that you served in the U.S. Senate before the 
proceedings on the Senate floor were televised, did you not?
    Mr. Specter. That is correct.
    Senator Durbin. And how would you react now to critics who 
say that we are now more theatrical in our performances on the 
floor than before?
    Mr. Specter. I would cite the tremendous number of quorum 
calls. A Senator can get the national camera anytime he or she 
wants it, virtually, but people do not do it. And there are no 
theatrics there. And to the extent that there could be 
theatrics--and there might be some--that is vastly outweighed 
by the benefit, by the benefit of public understanding and 
having the public see how its Government functions. And the 
Supreme Court is the most powerful part. When they refuse to 
decide a case like the Terrorist Surveillance Program 
warrantless wiretaps, contrasted with Congressional authority 
under the Foreign Intelligence Surveillance Act, they take 
tremendous power away from the Congress and give it to the 
executive branch. People ought to know that.
    And when they decide that Congress cannot legislate to 
protect women against violence because Chief Justice Rehnquist 
said it is our method of reasoning, it really -it does not 
verge on insulting. It is.
    I do not think we are being too assertive if we say to the 
Supreme Court, ``Televise. And if you want to declare it a 
violation of separation of power, we acknowledge your 
authority.''
    Senator Durbin. Thank you, Senator Specter.
    Madam Chair, I ask that my statement be placed in the 
appropriate place in the record.
    Chairman Klobuchar. It will be placed in the record.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]
    Chairman Klobuchar. I did want to reiterate what Senator 
Durbin just said. You think no one is really watching you 
sometimes? I was in a small town in southern Minnesota a few 
years ago, and four older women called me aside after I gave a 
little talk. And they said, ``You know, we tuned in every day 
to see you preside at 4 o'clock over the Senate.'' They are 
just watching me sitting in the chair. ``And we noticed you are 
not doing it anymore,'' because they changed the time. And they 
said, ``Are you in some kind of trouble in the Senate? '' And 
it just struck me again how regular citizens are tuning in, and 
while I know right now the reputation of Congress has some 
issues, for good reason, I do not think that means we shut them 
out. And, in fact, I see it as part of the democracy, that 
people are able to watch this and come to their own conclusions 
about issues.
    So, with that, I turn it over to Senator Blumenthal.
    Senator Blumenthal. Thank you, Senator Klobuchar. I tune in 
every time you preside as well, so I just want you to know you 
have a lot of fans out there.
    I have not argued as many cases as you have, Ms. Mahoney 
and Mr. Goldstein. I have done several. And I recognize the 
dangers that the Justices of the Supreme Court see in the 
possibility of grandstanding and theatrics. But I have to tell 
you, there is no more intimidating and challenging experience 
than to argue before the United States Supreme Court. And bar 
none, I think there are constraints built into the forum and 
the pace and the difficulty of questioning that would really 
preclude--and I have been there, and I have had in mind sort of 
applause lines that I might use. But it is impossible, given 
that forum to responsibly do it. And I would suggest that the 
great fear in the back of every advocate's mind is the 
possibility of a rebuke from the Court, which is very close to 
happening to any lawyer, especially one in the position of 
trying to use it as a public grandstand, so to speak, from one 
of the nine Justices, and any nine of them can offer that 
rebuke.
    So I think that the fear of that happening is greatly 
overstated in the minds of the Justices perhaps because they 
have not recently been an advocate before the Court, if they 
have been at all. And I come down on the side of permitting 
televised proceedings, obviously depending on how it is done. 
The example we saw here akin to what is done in many State 
courts I think would be a plausible and prudent way to do it. 
And, obviously, the State courts have gone through this debate. 
We did in Connecticut at the trial level where the potential 
for grandstanding is much greater in the midst of an 
evidentiary proceeding where waving a piece of evidence before 
a jury is always a real possibility.
    But all of that said, I want to come to the constitutional 
question, which I agree is serious. I believe, as you do, Mr. 
Goldstein, without promises, that it would be upheld because I 
think that it is in the nature of a rule of procedure or a rule 
of infrastructure, so to speak.
    With that in mind, let me ask all of you, but beginning 
with Ms. Mahoney, couldn't the Congress, if it wished, move the 
Supreme Court into a building five times the size of the 
present one, admitting an audience many times larger than what 
we have now, in fact, maybe even the Civic Center? I do not 
know what the Civic Center in Washington, DC, is called, but we 
have one in Connecticut which will admit thousands of people. 
Couldn't it expand the size of the physical audience? And isn't 
that very much in the same nature as this rule would do?
    Ms. Mahoney. Well, certainly the Supreme Court cannot build 
its own building--although maybe it could. It could probably 
get the Supreme Court Historical Society to raise money for a 
building for it. But certainly the Congress has the power of 
the purse and for that reason does have control over some 
things like where the Supreme Court will sit. And, yes, I 
assume that Congress could, in fact, build a new building with 
a bigger chamber.
    I do not think that means they can put the Court in a 
Coliseum if the Court felt that it adversely impacted the 
integrity of its decisionmaking, and that is really what we are 
talking about here, is how do these Justices assess the impact 
of television on their deliberative process.
    If I could just speak to this issue of the nature of the 
power that Congress has, certainly they have some. 
Appropriations is one. The power to determine the number of 
Justices, well, that is because while the Constitution creates 
the Court, the Court is not self-appointing. That power, the 
power of appointment, is given to the President with the 
consent of the Senate. So as an ancillary matter, it makes 
sense to say they can come up with the numbers.
    But when the President tried to enlarge the number of 
Supreme Court Justices back in the Court-packing days, when 
President Roosevelt did that, what this Senate did was they 
refused to go along. They defeated the legislation, and this 
Committee issued a report that said it was essential that the 
judiciary be completely independent of both executive and 
legislative branches. So even the powers Congress does have, it 
has to use in a way that does not interfere with independence, 
and it has never exercised oversight responsibility over 
Supreme Court rules. From 1789 the Court has solely had that 
authority on its own.
    So I think in the textual case for the Congress' authority 
in this area, it is not really there. I am not saying that I am 
sure this is unconstitutional, but this is a very, very serious 
question.
    Senator Blumenthal. I disagree. I do not know why it is do 
serious. If the Court can be moved to a forum much, much 
larger, if the Congress can control, in effect, the kind of 
record that is made, can't it also, in effect, open the 
proceedings to the public in a different forum?
    Ms. Mahoney. If it is doing that in a manner which impacts 
directly on the Court's ability to control its own proceedings, 
then there is a very serious question because that is part of 
the judicial power, Senator.
    Senator Blumenthal. And I agree with you that if the 
Congress passed a law that said in the course of these 
proceedings every Justice has to be televised individually 
close up and the litigant or the lawyer for the litigant should 
be given permission to move around the courtroom and show 
whatever physical evidence was presented at trial, that would 
change the nature of the proceeding. But simply to leave the 
proceeding as it is now but open it to larger viewership I do 
not think changes----
    Ms. Mahoney. But that just begs the question of who is 
supposed to decide whether it changes the nature of the 
proceeding, because so far the Justices of the Supreme Court 
have concluded that they think it would, and that is why--they 
are not being arbitrary. They are not just saying no television 
for no reason. They have a different assessment than you do, 
Senator, and the whole nature of the independence of the 
judiciary----
    Senator Blumenthal. But the Supreme Court Justices also 
believe that the judiciary is underfunded----
    Ms. Mahoney. Yes, they do.
    Senator Blumenthal.--so that it is inadequately performing 
its present function. I think that is a much more fundamental 
separation-of-powers issue----
    Ms. Mahoney. It is a very fundamental issue.
    Senator Blumenthal.--than whether or not we put cameras in 
the courtroom. For the United States judiciary to be 
inadequately funded seems to me a much more serious and 
profound----
    Ms. Mahoney. It is a very serious and profound issue, and 
it is one that I think Congress should address and correct.
    Senator Blumenthal. Why is that not also a constitutional 
issue then?
    Ms. Mahoney. Well, because Congress clearly has the 
delegated authority to establish the budget and to fund 
appropriations. So its authority there is textual in basis. 
What is its textual authority to----
    Senator Blumenthal. Well, then----
    Ms. Mahoney.--impose rules on the Supreme Court----
    Senator Blumenthal. And I apologize for taking too much 
time, Madam Chairman. Just one last question.
    Why could the Congress as a matter of its appropriations 
power fund cameras in the United States Supreme Court with the 
mandate that they be installed?
    Ms. Mahoney. Well, they could have a provision to fund 
them, but the issue of whether they can mandate that they be 
used intrudes into the core power, judicial power of the Court 
to decide how to conduct its own proceedings. That is the 
difference. If it is all about line drawing--and, Senator, I 
agree there, it is very difficult to know where to draw the 
lines, but that is why we need to let the Court draw its own 
line.
    Senator Blumenthal. Thank you very much.
    Thank you, Madam Chairman.
    Chairman Klobuchar. Very good. Thank you very much, Senator 
Blumenthal.
    I want to go to the heartland now with you, Justice Cady. 
We have a lot of jokes about Iowa and Minnesota, but I will 
tell them to you later. But we do know some good things come 
out of Iowa, and one of them is your experience and knowledge 
that you bring today to this hearing.
    What concerns did you hear in Iowa before cameras were 
introduced into the courtroom? What year was it again that they 
were introduced?
    Justice Cady. 1979.
    Chairman Klobuchar. OK. Well, that was quite a while ago. 
So do you know what the concerns were raised back then?
    Justice Cady. I do, and I think there is a tendency to want 
to brush the issue aside by addressing it on a constitutional 
framework. But I really think that this distracts from the real 
conversation because this issue does involve public policy, and 
it seems to be--the disagreement seems to be based upon certain 
assumptions. You think that it is going to cause some bad 
reaction, and others think that cameras in the courtroom is a 
healthy response.
    But our experience in Iowa has been that it has dispelled 
the fears that we had when we addressed this issue. We talked 
about the very same things that we have talked about in this 
chamber this morning. We talked about the same fears and 
concerns about how cameras would change the fundamental nature 
of the decisionmaking. But what we have found out is that we do 
not even see the cameras; we do not even remember that they are 
in the courtroom. We go about doing our business as we have 
always done our business, and any fear of any problems have 
always been minimized or eliminated by the fact that the judge 
or the justices still maintain control of the courtroom. 
Allowing cameras into the courtroom does not give up control 
over the proceedings.
    Chairman Klobuchar. How about relationships with 
colleagues? Because oftentimes that is important as you look 
can you get consensus on a certain decision and get things 
done. Has that affected it at all, the cameras?
    Justice Cady. Well, it has not. We have had cameras in our 
Supreme Court proceedings since 2006. I have served on the 
court throughout that period of time, and I can cite no 
instance, no example where in any way the decisionmaking of the 
court has been altered by the presence of cameras during an 
oral argument.
    There may be times when I have thought twice about asking a 
question in a sensitive case, in a case that is followed 
closely by the public. But there were times before we had 
cameras in the courtroom that I thought twice about----
    Chairman Klobuchar. Because it would have been reported in 
some way?
    Justice Cady. Well, yes, you know that the work that you 
are doing is being examined more carefully by more people.
    Chairman Klobuchar. And I think that is a thing here, when 
we are already doing audios, I think every Friday or a few days 
after the hearings. It is just really one step away, yet it 
would make it so much more accessible for so many people.
    How about some restrictions? Do you have limitations like 
we have in the Durbin-Grassley bill that would, say, a majority 
of the justices could decide because of due process reason that 
it would not be filmed?
    Justice Cady. Well, we do have restrictions, and we were 
very concerned about those restrictions when we first 
implemented cameras in our courtroom. But it is as if the 
restrictions are no longer there because we just do not run 
into any problems anymore.
    Chairman Klobuchar. Do you remember if there were instances 
where you did not film something because of some reason that 
the justices felt it should not be filmed?
    Justice Cady. No. The only time that we have--in our 
Supreme Court proceedings, the only time when we have not 
filmed something is because we had to shut down our cameras for 
a period of time because of budget cuts. But at no time have we 
ever thought this was not a case that is appropriate.
    Chairman Klobuchar. Very good.
    Judge Scirica, just hearing all this, I know there are some 
pilot projects going on across the country in the Federal 
district courts. I think maybe there is one in the Ninth 
Circuit and other places, or maybe it is just in the district 
courts in the Ninth Circuit. Are you aware of those pilot 
projects and do you know what the outcomes are?
    Judge Scirica. Yes, very much. The pilot projects are only 
in the district courts, in 14 district courts around the 
country, and they involve civil trials, not criminal trials. 
And the project started last summer. It will go for 3 years. 
There already have been ten trials that have been televised, 
transmitted, and we will have some good experience after a 3-
year period as to how they function.
    You know, going back to the earlier trial, in 1990 there 
was a very significant number of federal appellate judges, one-
third, who thought that televising oral arguments actually 
affected the way they asked questions. They trimmed their sails 
on matters that were quite sensitive, very high publicity 
cases, and they did not engage in the kind of rigor that they 
ordinarily would have had the cameras not been present.
    In the trial courts there were a lot more problems with the 
impact on witnesses and jurors, and for that reason the 
Judicial Conference declined to adopt a principle that allowed 
the trial courts to televise their proceedings. Of course, the 
courts of appeals were given the authority to do it.
    But I think there is an important point that has not been 
mentioned yet, and that is, with respect to the state supreme 
courts that have adopted either televising or putting their 
proceedings on audio, practically all of these have been done 
through court rule. They have not been imposed by the State 
legislatures. A few have, but most of them have been done by 
the courts themselves. Right now there are 22 state courts that 
televise their proceedings, another 15 that do audio, and there 
are some pilot projects in some of the other states. And that 
is what I am saying here. This is something that is so 
essential to the courts' function, particularly the Supreme 
Court, that is in a different arena from the state supreme 
courts and the federal courts of appeals. The Supreme Court is 
much more visible. The possible uses to which video clips could 
be employed, we do not know. But it is something, I think, that 
the Congress ought to consider before deciding whether or not 
to mandate this kind of coverage.
    Chairman Klobuchar. So given that we are talking about 
cameras in the Supreme Court where we are not having trials go 
on, and I think many people up here, there is a knowledge that 
your district judge should have the ability to decide whether 
or not things should be filmed and the effect it might have on 
witnesses. But are there any pilot projects going on where they 
are actually filming appellate courts, which would be----
    Judge Scirica. Not right now.
    Chairman Klobuchar.--the circuit courts, which would be the 
best example, I think, for the Supreme Court situation.
    Judge Scirica. There are none right now. It is only in the 
district courts.
    Chairman Klobuchar. And then I will go back and end with 
you, Justice Cady, this notion that it is somehow going to 
change what people do. And I keep coming back to the fact that 
these things are audiotaped anyway now and that maybe with some 
of these earlier situations they were not audiotaped. But they 
are audiotaped now, so people are going to be able to broadcast 
things anyway, and it is just a way of making--by filming them, 
you make them more available to more people.
    And then I would also go to the fact of what would cause a 
lifetime-appointed judge to not want to ask that question. I 
suppose you could make the argument that a judge who is going 
to have a term limit and will be re-elected again, that somehow 
that would change. But I am just trying to get to this 
mentality of someone who has a lifetime appointment, unless 
they do not want to have protesters--but they already have 
protesters. So could you just discuss that, just that 
motivation from your perspective? And obviously Judge Scirica 
and Ms. Mahoney have made the point that they think it does 
have an impact. Justice Cady?
    Justice Cady. Well, the impact or the perceived impact of 
any change certainly must be considered, but so, too, must the 
benefits that are available from change. And as I said earlier, 
we have gone through this transformation, and what we have 
found out is that all that is left in the end is the benefits 
to the public. And we do not encounter problems. We, as I said, 
do not even remember that our cameras are in operation. They 
are set up in our courtroom in a way that is unobtrusive, 
barely noticeable. And as you saw from the small clip that I 
brought along with me this morning, you could see that the 
questioning was tough, it was vigorous, it was to the point of 
the issue. And it illustrated what our courts are really all 
about, and that is, digging into the bottom of the issue and 
entering a result and a decision that we call justice. And what 
the cameras do is expose that to the public, and it is critical 
in this day and age that the public be exposed to the way our 
courts truly operate, not how they are perceived to operate.
    Chairman Klobuchar. Thank you very much.
    Senator Sessions.
    Senator Sessions. Well, this has been an excellent panel, 
and, Justice Cady, our court decided to have the cameras. Is 
that correct?
    Justice Cady. Correct.
    Senator Sessions. Mr. Goldstein and Ms. Mahoney, isn't it 
true that oral arguments often do not--if someone only saw the 
oral arguments and had not studied the brief and studied the 
record, they would get a misimpression of the nature of the 
case because the Justice may be focusing on just, say, a small 
part of it? Have you been surprised at the tack that the 
arguments have taken when you have prepared diligently for the 
issues you thought were going to be most important?
    Mr. Goldstein. There is no question that for the members of 
the public in the audience who are admitted, as well as anybody 
who listens to the audiotape that is made available, and 
anybody who would watch on television, you can get dropped down 
into the middle of a very complicated story. So it may not be 
the easiest thing to comprehend, just like this hearing, if you 
were to turn it on, might not be the easiest thing to 
comprehend. The question then is the overall effect and the 
benefit to public understanding and also the effect on the 
Court's proceedings.
    Senator Sessions. Ms. Mahoney.
    Ms. Mahoney. Certainly, and especially if you just listened 
to a short video clip, you might get a very wrong impression 
about what was transpiring there. I know Justice Souter, for 
instance, said that his opposition was based in part on the 
fact that he felt that television could run a very short clip 
of him that would maybe make it seem that he was not impartial, 
for instance, because questioning can be aggressive and devil's 
advocate, that sort of thing, and that because of the nature of 
the TV news, they can only pick a very small excerpt. And 
Justice Scalia has said that he thinks it would actually 
contribute to the miseducation of the public.
    Senator Sessions. Well, Judge Scirica, it seems to me that 
there is a lot of truth to that. In other words, if you are on 
television and you are used to bringing a lawyer here, like Ms. 
Mahoney or Mr. Goldstein, and you ask them about a 40-year-old 
complex case but they know precisely what the question is 
about, wouldn't the judge feel obligated to maybe have a 
prolonged part of the preamble to explain and make sure those 
people out there understood what he was saying so they would 
not misunderstand what he was saying when the lawyers would 
know immediately what the judge was asking?
    Judge Scirica. Quite possible. Quite possible. I think the 
other thing that I find troubling, Senator, is the possible 
uses to which film clips might be put in subsequent situations; 
that is, after the entire oral argument is shown, let us say, 
on C-SPAN, there may be excerpts or snippets that might be used 
for other purposes, and I do not know how we can anticipate 
whether that would happen or not or what form it would take.
    But I think it is something that the Supreme Court has 
thought about, primarily--and we have heard from Ms. Mahoney 
about some of their statements, and I think they are quite 
concerned whether it might affect the way they conduct oral 
argument, the kinds of questions they ask. A death penalty 
case, for example, where there are very serious constitutional 
issues, and the family of the victim happens to be in the 
room--I think judges are going to think very carefully about 
how they probe those difficult constitutional issues. And there 
are other sensitive cases as well.
    So I think it is not quite right to say that there will be 
no impact on the conduct of the argument before the Supreme 
Court.
    Senator Sessions. I have a memory of when I first started 
prosecuting cases that when the jury returned the verdict, the 
judge would tell them not to discuss their verdict. And then 
the Supreme Court, I think, said, well, free speech, you cannot 
tell them not to discuss their verdict. Well, I do not know--to 
me some majesty of the authority of that decision is a little 
bit eroded when one juror says, ``I thought he was a skunk, but 
there was not enough proof,'' and this one says this and this 
one says that, and it becomes a--so I think to some extent that 
you should judge a court--not to some extent, but virtually 
totally judge a court on the merit of the opinion. Isn't that 
what we should judge a court on and evaluate, Judge Scirica, 
basically the power and the authority of the opinion as 
rendered?
    Judge Scirica. Of course.
    Senator Sessions. And oral arguments often give very little 
insight into how that opinion would come out, and sometimes 
judges change their minds from the oral argument date to the 
time they write an opinion.
    Judge Scirica. Of course. Each of us who has served on an 
appellate court has had oral argument affect the way we think, 
and once we get into the meat of the case and start writing the 
opinion, you find out that you may come out the other way.
    The real work is done in preparing for oral argument, 
reading the briefs, reading the opinions, studying the law. 
Oral argument is helpful. It is a slice. Sometimes you play 
devil's advocate. Sometimes you ask very provocative questions. 
But it is the written opinion that counts, and the public will 
judge the court, particularly the Supreme Court, on the 
soundness of its opinions, whether it is persuasive, and that 
is fully transparent.
    Senator Sessions. But that principle may be less so if they 
like the visage of one judge and not that of another one or the 
personality of one judge. I would just say, Madam Chairman, the 
Court seeks in an ideal world always to determine law based on 
the facts and determine what the law as applied to the facts 
should be. To the extent to which it becomes even a little more 
political, ideological, religious based or whatever, it comes 
up in the course of these arguments and the teeming cauldron of 
emotions that are out there in the world around that courthouse 
when it makes its decision, to the extent to which it is in any 
way moved from that ideal I think is not healthy. So it would 
seem to me the Court is a little uneasy--more than a little. 
The Court is uneasy that this would move them away from law. To 
that extent, I would be prepared to show deference to their 
conclusion on it.
    I would note that the legislation as now drafted, different 
from previous legislation, would mandate the cameras and 
operating the cameras in the courtroom unless in every case the 
Court votes to the contrary.
    Thank you for an excellent hearing and an excellent panel.
    Chairman Klobuchar. It is not quite over because Senator 
Blumenthal has a question. I was trying to picture, though, as 
I was listening to you, Ruth Bader Ginsburg turning into Judge 
Judy, and I just do not think it is going to happen.
    [Laughter.]
    Chairman Klobuchar. I do not think it is going to change 
her demeanor if she is on TV. This is just my view.
    But I will turn it over to Senator Blumenthal for a few 
more questions, and then we will wrap it up.
    Senator Blumenthal. A very few more questions. Thank you, 
Madam Chairman, and thank you also for having this hearing, 
which I agree has been excellent due to the excellent witnesses 
that we have. And I have just a couple of questions I guess for 
Mr. Goldstein and Ms. Mahoney, and anyone else.
    You know, I am wondering, in light of the increased 
openness that we have in the Court, to its credit--I was a law 
clerk in the 1974-75 term for Justice Blackmun, and there were 
no recordings, there were no tapes available. Even we as law 
clerks had to attend physically the arguments if we wanted to 
hear what the advocacy was. And so I wonder whether the 
accessibility, which, as you said--I think correctly, Ms. 
Mahoney--for anyone who really wants to hear what is going on, 
it is available--whether that has changed the nature of 
argument. I sense not, but you have been doing it more than I 
have.
    Ms. Mahoney. I do not think it has changed the way I argue 
cases, but I cannot really speak to what the Justices might 
think.
    Mr. Goldstein. I have never heard anyone articulate the 
idea that because it is being taped and now the tape is 
available at the end of the week that the oral arguments have 
happened differently. Television is a different kettle of fish, 
of course, for all the reasons that it invites more people to 
witness the proceedings, so it conceivably could have an 
effect. I do not see it happening for the reason that you gave, 
as someone who did have considerable oral argument experience 
and the great fear of being slapped down for grandstanding is a 
really serious one. And nobody wants to lose their case or 
embarrass themselves.
    And to the extent it changes how the Justices comport 
themselves, well, they are comporting themselves in front of 
the American public, and that I think is an acceptable cost, to 
the extent it is a cost.
    I would only make one other point, and that is, we have 
talked about this as if it were just about oral arguments and 
changing how oral argument is conducted. That is not quite 
right. The Court has other public proceedings. It announces 
decisions, and nobody would, I think, say that there is an 
interaction between lawyers that would change there. Yet those 
are not televised. And the Court also has proceedings where, 
for example, a Justice will be invested into the Court, and 
those are not televised either. And, again, not something that 
you would say ordinarily could somehow be affected by 
televising it, and yet it is a part of the democratic process 
that would be affected by the legislation as well.
    In your view--and any of the panelists can respond--could 
the Court decide that it felt that the intrusive nature of the 
writing press, given that the transmission of those writings 
now is virtually instantaneous, was so intrusive that it would 
just bar all reporting?
    Mr. Goldstein. The answer to that question is clearly no. 
The Court's own decisions about public access make fairly clear 
that there is that form of access. But as Ms. Mahoney 
indicates, there is a different historical tradition that is 
involved there.
    I will say that the Court does have certain restrictions 
even with respect to the press and who can be a member of the 
press and how it is that the press functions inside the 
building, trying, I think, as with the website, as with the 
release of the audio, to get as much public access as they can. 
But that is an example, I think, where there would be a First 
Amendment prohibition to what they are doing here. I do not 
think anybody has made the serious argument that there is a 
First Amendment right to have a television camera in a court.
    Senator Blumenthal. Because it is in the nature of a time, 
place, and manner?
    Mr. Goldstein. Yes, that it is more--because of its greater 
relative intrusion on the proceedings, that it requires some 
physical installation, it is just--as has been said, it is a 
line-drawing difficulty, and the fact that there are other 
avenues of receiving the information through the written press 
that satisfies the First Amendment. The question whether you 
have the legislative power to, nonetheless, enact such a law 
and in your own view say, well, there is a real First Amendment 
value here--not everything has to be a Federal case. Not 
everything has to be a constitutional violation. But we can all 
say, gosh, it is really good for the American people to see how 
their Government operates. That is really what the First 
Amendment is about, and so that motivates us to pass 
legislation like this. That would be a different question.
    Senator Blumenthal. Thank you.
    Thank you, Madam Chairman.
    Chairman Klobuchar. Thank you.
    Senator Sessions, do you want to add anything?
    Senator Sessions. No, just thank you. It is a good panel. I 
enjoyed this. These are important issues. I do not think it is 
the most crucial issue in the world, but it is a tough issue to 
know precisely what the right thing is, and we thank you for 
participating.
    Chairman Klobuchar. Well, very good. I think you saw from 
all of the Senators that attended today, with Senator 
Blumenthal, Senator Whitehouse, Senator Durbin, Senator Lee, 
Senator Grassley, and Senator Sessions and myself, that there 
is big interest in this. And I am one to believe, as Mr. 
Goldstein has pointed out, that this would be best if the 
Supreme Court made the decision themselves. So hopefully they 
are watching C-SPAN and they see all of us here and hear these 
arguments instead of having it done legislatively. But one of 
the reasons that we are focused, some of us, on the legislation 
is, as Senator Specter pointed out, it has been 25 years and 
waiting. And the idea here is, as my colleague Senator Sessions 
talked about, the importance of the dignity of the Court and 
the majesty of the Court, which I think we all can understand.
    On the other hand, we want other people to be able to see 
that besides the 250 people that are crammed into a room to 
watch, that the people in Justice Cady's home State should be 
able to tune in and watch this and watch important issues of 
the day that I believe, while we, as Senator Sessions pointed 
out, have a lot of things going on, a lot of those things end 
up in the Supreme Court in one way or another. And I think that 
is what this is about, understanding that we want to respect 
the decisionmaking process and not get into the private 
decisionmaking process and the debates going back and forth and 
how harmful that would be, but, in fact, just the public 
portion of it and the pronouncement of the decisions as well, 
as Mr. Goldstein has pointed out.
    So I wanted to thank all of you. This has been a highly 
interesting hearing, and I hope that we will be able to have 
people watch it. As it is recorded, they will be able to see 
the arguments. So I wanted to thank Senator Specter, who had to 
go back to his home State, as well as Mr. Goldstein. Thank you 
especially, Justice Cady and Judge Scirica, for being willing 
to talk about your own personal experience and kind of get 
beyond the comfort level of where you get to ask the questions 
and we get to ask the questions instead. We kind of like that. 
And then also thank you, Ms. Mahoney, for your vast experience 
that you bring to this, also, I should have mentioned, being a 
clerk for Justice Rehnquist, so the experience that you bring 
to this as well.
    So thank you, everyone. We will keep the record open----
    Senator Sessions. Madam Chair, could I offer a letter from 
former Senator Bob Kerrey in opposition to the legislation?
    Chairman Klobuchar. OK.
    Senator Sessions. Thank you.
    [The letter appears as a submission for the record.]
    Chairman Klobuchar. Very good. Then I will also offer the--
not to be one-upped, I will also offer the statement of 
Chairman Leahy supporting the cameras in the courtroom.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Klobuchar. I want to thank all of you for being 
here. We will keep the record open for 1 week for people to 
submit further statements.
    So thank you very much, and we look forward to debating 
this issue in the months to come. The hearing is adjourned.
    [Whereupon, at 12:01 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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