[Congressional Record Volume 156, Number 112 (Wednesday, July 28, 2010)]
[Senate]
[Pages S6348-S6349]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  TELEVISING SUPREME COURT PROCEEDINGS

  Mr. SPECTER. Mr. President, I have sought recognition to address the 
subject of televising the Supreme Court of the United States. 
Legislation is pending on the Senate docket which was voted out of the 
Judiciary Committee by a vote of 13 to 6, and it is particularly 
appropriate to consider this issue at a time when we are examining the 
nomination of Solicitor General Elena Kagan for the Supreme Court.
  We have seen, in a series of nomination proceedings, the grave 
difficulties of getting answers from nominees as to their philosophy or 
ideology, and that is particularly important when the Supreme Court has 
become an ideological battleground. There is a great deal of lip 
service to the proposition that the courts interpret the Constitution 
and interpret legislation as opposed to making law, but the reality is 
that on the cutting edge of the decisions made by the Supreme Court, 
the decisions are based on ideology. Therefore, for the Senate to 
discharge its constitutional duty on advise and consent--on the consent 
facet, to have an idea of where nominees stand--there is an adjunct to 
that consideration; that is, to find a way to have the nominees follow 
the testimony they give.
  We have found that in notable cases--the most recent of which is 
Citizens United--two of the Justices made a 180 degree about-face. Both 
Chief Justice Roberts and Justice Alito testified extensively about 
reliance upon Congress for factfinding under the obvious proposition 
that Congress has the ability to hear witnesses and make factual 
determinations. Chief Justice Roberts was explicit in his testimony 
that when the Court takes over the factfinding function, that it is 
legislation which is coming from the Court decisions.
  Similarly, those two Justices were emphatic on their view of stare 
decisis, and there was a 180-degree about-face in Citizens United on 
precedent which lasted for 100 years, and now corporations may engage 
in political advertising. So the issue is one of trying to deal with 
some level of accountability.
  The principle of judicial independence is the bulwark of our 
Republic. It is the rule of law which distinguishes the United States 
from most of the other countries of the world. The independence of the 
judiciary is assured by the fact they serve for life or good behavior. 
The suggestion that the Court be televised is in no way an infringement 
upon judicial independence.
  We are not suggesting how the Justices should decide cases, we are 
saying to the Justices that the public ought to know what is going on. 
Recent public opinion polls show that 63 percent of the American people 
favor televising the Supreme Court. When the other 37 percent was 
informed that the Supreme Court Chamber only holds a couple hundred 
people and that when someone arrives there they can only stay for 3 
minutes, that number in favor of televising the Court rose to 85 
percent.
  The highest tribunal in Great Britain is televised. The highest 
tribunal in Canada is televised. Many State supreme courts are 
televised. The press--the print media have an absolute right to be 
present in the proceedings under Supreme Court decision. So why not the 
Supreme Court?
  This comes into sharp focus on the factor that there has been an 
erosion of congressional authority by what the Supreme Court has done. 
In the course of the past two decades--really, 15 years--the Congress 
has lost a considerable amount of its authority--some taken by the 
Court and some taken by the executive branch. The Court has taken 
greater authority.
  In 1995, with the decision of United States v. Lopez, on the issue of 
caring guns into a school yard, for 60 years there had been no 
challenge to the authority of Congress under the commerce clause. That 
followed the legislation declared invalid under the New Deal of 
Franklin Roosevelt in the 1930s and led to the move to pack the Court. 
But since that time, the commerce clause has been respected.
  The case of United States v. Morrison, involving legislation 
protecting women against violence, was another case diminishing the 
power of Congress. In a 5-to-4 decision, the Supreme Court declared 
that act unconstitutional because of Congress's ``method of 
reasoning.'' One may wonder what

[[Page S6349]]

the method of reasoning is in the Supreme Court Chamber, a short 
distance beyond the pillars of the Senate. What happens when a nominee 
leaves the confirmation proceedings and walks across Constitution 
Avenue? Do they have some different method of reasoning?
  The fact is, there has been a reduction in the authority of the 
Congress. The Court has further taken authority from the Congress in a 
series of decisions interpreting the Americans with Disabilities Act. 
Two cases--Alabama v. Garrett and Tennessee v. Lane--came to opposite 
results with 5-to-4 decisions. In the case of Tennessee v. Lane, the 
Americans with Disabilities Act was upheld when a paraplegic sued 
because he couldn't gain access to a courtroom because there was no 
elevator. With a shift in the vote of Justice Sandra Day O'Connor in 
Alabama v. Garrett, the section of the Americans with Disabilities Act 
was declared unconstitutional dealing with employment.
  In the case of Alabama v. Garrett, the Court applied a test called 
congruence and proportionality. Up until the case of City of Boerne in 
1997, the standard had been a rational basis. But a new standard was 
articulated--congruence and proportionality--which is impossible to 
understand.
  Justice Scalia correctly asserted that it was a ``flabby test,'' 
designed to give the court flexibility to engage in judicial 
legislation.
  When nominee Elena Kagan was asked which standard she would apply, 
the rational basis test or the congruence and proportionality test, she 
declined to answer. That certainly fell within the ambit of Ms. Kagan's 
now famous 1995 Law Review article, where she chastised Justice 
Ginsburg and Justice Breyer for stonewalling in their nomination 
hearings, and also the Senate for not getting information to help in 
discharging our duty to consent to Supreme Court nominations.
  One approach with television would be to hold some level of 
accountability when the public understands what is going on. Louis 
Brandeis, before he came to the Supreme Court, in a famous article in 
1913 advocated that the sunlight was the best disinfectant and 
publicity was to deal with social ills. Stuart Taylor, noted 
commentator on the Supreme Court, said the only way to have the Court 
stop taking away power from the Congress and from the executive branch 
is by infuriating the public.
  To infuriate the public, the public has to be informed, and 
television would be a significant step forward.

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