June 2010:
Court Videocast Bills Move in Senate

Washington Watch | June 2010
By Bruce Moyer

Lights, camera, action! Those are the words—in addition to the traditional triplet, “Oyez, Oyez, Oyez”—that a bipartisan group of Senate lawmakers would like to hear uttered in the federal courts. In late April, the Senate Judiciary Committee approved three bills expanding broadcast camera coverage in the district and appellate courts as well as the Supreme Court.

The leading measure, S. 657, the Sunshine in the Courtroom Act, introduced by Sen. Chuck Grassley (R-Iowa) and Sen. Charles Schumer (D-N.Y.), is the most far-reaching. This legislation would introduce broadcast coverage into all three levels of the federal district and circuit courts as well as the U.S. Supreme Court. Senators Patrick Leahy (D-Vt.), Arlen Specter (D-Pa.), Lindsey Graham (R-S.C.), Russell Feingold (D-Wisc.), John Cornyn (R-Texas), Richard Durbin (D-Ill.), and Amy Klobuchar (D-Minn.)—all members of the Senate Judiciary Committee—joined Grassley and Schumer in originally co-sponsoring the legislation. At committee markup, an amendment offered by Sen. Ben Cardin (D-Md.) that would have stripped the bill of authority for camera coverage of district court trial proceedings failed.

S. 657 would preserve the current ban on camera access in district courts unless the presiding judge in each proceeding allows cameras to enter the courtroom on a case-by-case basis. Camera access also would be denied if it would constitute a violation of the due process rights of any party to the litigation. The bill also prohibits broadcast coverage of conferences between attorneys and clients and directs the district court to honor the request of any witness, other than a party to the litigation, to obscure his or her face and voice in televised coverage of the proceeding. The measure also directs the Judicial Conference, the policy-making body of the federal courts, to issue guidance on how and when the identity of vulnerable witnesses should be obscured, along with general guidance on how and when cameras should be permitted entry.

The other two cameras bills that were approved by the Senate Judiciary Committee, S. 446 and S. Res. 359, deal only with the Supreme Court. S. 446 would require coverage of the high court’s open sessions, unless a majority of justices decides on a case-by-case basis that coverage would violate the due process of one or more parties before the Court. The other bill expresses the sense of the Senate and urges the Supreme Court to provide the same camera coverage as embraced in S. 446. Legal experts suggest that a congressional dictate to the Supreme Court to televise its open sessions might breach the separation of powers doctrine and be unconstitutional; the Senate resolution seeks to avoid that confrontation.
Most justices of the current Supreme Court have expressed an aversion to broadcast coverage of their public proceedings, despite public sentiment favoring such coverage. A poll conducted by C-SPAN in 2009 found that two-thirds of the country favored television coverage of the Supreme Court. During a hearing of the Appropriations Subcommittee in April, Justice Stephen Breyer told congressional lawmakers that the Judicial Conference was considering a pilot project to televise proceedings in the lower courts, but that the pilot would not include coverage of the Supreme Court.

Over the past decade, the House of Representatives has approved bills allowing cameras in the courtroom only to then see them languish in the Senate, even after emerging from the Senate Judiciary Committee. Given that history, the legislation currently in the Senate still faces an uphill battle toward becoming law.

Prospects for Pay Increases for Federal Judges Dim
The prospects of even a modest cost-of-living adjustment for federal judges in 2011 are dim as a result of related congressional action in April that blocked an automatic adjustment for members of the House and Senate. The pay adjustment would have increased current salaries by almost 1 percent. Election year jitters and a sluggish economy motivated Congress to waive the auto-raise, which is based on the annual change in the Employment Cost Index that reflects American workers’ wages.

Pay raises for federal judges are linked to those of members of Congress under a law that automatically provides a cost-of-living adjustment to members of Congress, federal judges, and Executive Branch officials—unless Congress intervenes. Even if Congress halts a cost-of-living adjustment for itself and permits the adjustment for high-level Executive Branch officials to move ahead, an additional congressional step approving an adjustment for federal judges is required under current law. In the past, Congress has demonstrated a proclivity to refrain from taking that step and providing judges a cost-of-living adjustment—even by modest amounts to make up for inflation—when Congress has blocked a pay raise for itself.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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