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26–506 PDF 2006

S. HRG. 109–331

CAMERAS IN THE COURTROOM

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 9, 2005

Serial No. J–109–50

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 78

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 88

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 2

prepared statement .......................................................................................... 90

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 6

prepared statement .......................................................................................... 107

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 4

prepared statement .......................................................................................... 137

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Bergman, Barbara E., President, National Association of Criminal Defense 

Lawyers, Washington, D.C. ................................................................................. 18

Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP, Washington, D.C. .... 21

Cochran, Barbara, President, Radio-Television News Directors Association, 

Washington, D.C. ................................................................................................. 27

DuBois, Jan E., Judge, District Court for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania ..................................................................... 12

Irons, Peter, Professor of Political Science, Emeritus, University of California 

at San Diego, San Diego, California ................................................................... 20

Lamb, Brian P., Chairman and Chief Executive Officer, C–SPAN Networks, 

Washington, D.C. ................................................................................................. 23

O’Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit, 

Portland, Oregon .................................................................................................. 10

Schleiff, Henry S., Chairman and Chief Executive Officer, Courtroom Television Network, LLC, New York, New York ...................................................... 25

SUBMISSIONS FOR THE RECORD 

Bergman, Barbara E., President, National Association of Criminal Defense 

Lawyers, Washington, D.C., prepared statement .............................................. 39

Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP, Washington, D.C., 

prepared statement .............................................................................................. 47

Cochran, Barbara, President, Radio-Television News Directors Association, 

Washington, D.C., prepared statement .............................................................. 70

DuBois, Jan E., Judge, District Court for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania, prepared statement .................................. 79

Irons, Peter, Professor of Political Science, Emeritus, University of California 

at San Diego, San Diego, California, prepared statement and attachment .... 92

Lamb, Brian P., Chairman and Chief Executive Officer, C–SPAN Networks, 

Washington, D.C., prepared statement and attachment .................................. 98

O’Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit, 

Portland, Oregon, prepared statement ............................................................... 110

Schleiff, Henry S., Chairman and Chief Executive Officer, Courtroom Television Network, LLC, New York, New York, prepared statement ................... 119

(1)

CAMERAS IN THE COURTROOM 

WEDNESDAY, NOVEMBER 9, 2005

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:33 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Grassley, Sessions, Leahy, and Schumer. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed on our hearing on cameras 

in the courtroom. The Ranking Member will be joining us very 

shortly. 

This is a subject of enormous importance to the American people 

on the basics of understanding how the Government functions. Senator Grassley, who is our lead witness today, has had legislation 

pending on cameras in the courtrooms of the circuit courts and the 

district courts, and I have had legislation pending since 2005, for 

some 5 years, to open up the Supreme Court of the United States 

to cameras. 

The Supreme Court, as our system of Government has evolved, 

is deciding the cutting-edge questions of our day, decisions on who 

will live and who will die, what is the power of the President, what 

is the relative power of the Congress, whether marijuana may be 

used for medicinal purposes, where the balance will lie in a woman’s right to choose, what DNA evidence may be used to exonerate 

the innocent. The whole range of cutting-edge questions have been 

left really to the Supreme Court of the United States. 

In the year 2000, the Court in effect decided who would be the 

President of the United States. There was the largest array of television truck that I have ever seen—and I have seen assemblages 

of television trucks—in front of the Supreme Court building when 

that case was decided. And it was, I thought, most unfortunate 

that the cameras were not allowed inside so that the American people and the people of the world could see precisely what was going 

on. 

At that time, Senator Biden and I had written to the Chief Justice urging that the case be open to television. The Chief Justice 

declined. They did release an oral transcript shortly after the hearVerDate 0ct 09 2002 09:08 Apr 03, 2006 Jkt 026506 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26506.TXT SJUD4 PsN: CMORC
2

ings ended, and that was illuminating, but far from what would 

have been apparent had cameras been in the courtroom. 

The House of Representatives and the Senate have been televised now for decades. And I think at the outset there might have 

been some grand-standing, so to speak, but it has been an enormously useful tool for public understanding as to how the Congress 

works. 

The hearings of the House and Senate have long been televised. 

The comments that I hear most frequently about television relate 

either to the NFL, the World Series or C–SPAN, and late-night 

viewing is practically captured by C–SPAN. 

It is my thinking that the Congress has the authority to legislate 

on cameras in the courtroom for the Supreme Court. The Congress 

makes the determination as to how many justices there are on the 

Court. The Congress makes the determination of what is a quorum 

for the Court. The Congress makes the determination for when the 

Court will begin its session on the first Monday in October. The 

Congress has imposed time limits for the Supreme Court. And by 

analogy to those lines, I think it is fair for the Congress to legislate 

in this field. 

Obviously, if the Supreme Court decides as a matter of separation of powers that it is not a Congressional prerogative, we will 

not petition for a rehearing. That will be the judicial decision which 

we respect since Marbury v. Madison. We have a distinguished array of witnesses today. Our lead witness is Senator Charles Grassley, the senior Senator from Iowa. He 

came to the U.S. Senate in 1980, a banner year for Republicans. 

Some 16 Republicans were elected that year, and two of them were 

Charles Grassley and Arlen Specter, and the only two survivors are 

the two of us. 

Senator Grassley was once analogized—I am going to be a little 

more liberal with the time, since no other Senator is on the panel. 

I usually stop promptly with the red light. Senator Grassley was 

analogized or compared to President Harry Truman as being very 

plain-spoken. The expression was ‘‘horse sense,’’ and with Senator 

Grassley’s background as a farmer, he took it as a compliment and 

it was intended as a compliment. And I can say that with some certainty because it was my statement about Senator Grassley. 

Welcome, Senator Grassley. You are a distinguished member of 

this Committee, you are a distinguished member of the Senate, and 

we look forward to your testimony. 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Well, thank you very much for giving us an 

opportunity to speak about openness in our courts. As you know, 

I have long championed this, most recently with Senator Schumer, 

going way back to the 106th Congress when we first introduced the 

sunshine bill. Over the years, it has enjoyed bipartisan cosponsorship, and we have had the opportunity of getting our bill out of this 

Committee three times since that 106th Congress. 

Just a couple of months ago, the new Chief Justice testified before our Committee about this issue when I and several members 

asked, and he seemed to have a great deal of open-mindedness on 

3

this subject. Today’s hearing, I hope, will help him with facts needed to make decisions to open the Supreme Court, as well as other 

Federal courts, to cameras. As you know, the House Judiciary Committee just passed out by a vote of 20 to 12 a House companion 

that was introduced by Congressman Chabot. 

The Grassley-Schumer bill will give Federal judges the discretion 

to allow for photographing, electronic recording, broadcasting and 

televising in Federal courts. The bill will help the public become 

better acquainted about the judicial process, produce, I think, a 

healthier judiciary, increase public scrutiny, bring greater accountability, and I think help judges to do a better job. The sun needs 

to shine in on the Federal courts. 

In this room, we often talk about the intentions of the Founding 

Fathers. I think allowing cameras in the Federal courtroom is absolutely consistent with their intent that trials be held in front of as 

many people as choose to attend. I believe the First Amendment 

requires court proceedings to be open to the public and, by extension, news media. 

As the Supreme Court articulated in 1947, in Craig v. Harney, quote, ‘‘A trial is a public event.’’ Another quote: ‘‘What transpires 

in the courtroom is public property.’’ The Supreme Court stated in 

its 1980 ruling in Richmond Newspapers, ‘‘People in an open society do not demand infallibility from their institutions, but it’s difficult for them to accept what they are prohibited from observing.’’

Beyond the First Amendment implications, enactment of our bill 

would assist in the implementation of the Sixth Amendment’s 

guarantee of public trials in criminal cases. In its 1948 Oliver opinion, the Supreme Court said, quote, ‘‘Whatever other benefits the 

guarantee to an accused that his trial be conducted in public may 

confer upon society, the guarantee has always been recognized as 

a safeguard against any attempt to employ our courts as instruments of persecution.’’ The Court stressed that, quote, ‘‘The knowledge that every criminal trial is subject to contemporaneous review 

in the forum of public opinion is an effective restraint on possible 

abuse of judicial power,’’ end of quote. Louis Brandeis captured it 

better by saying ‘‘Sunshine is the best disinfectant.’’

During this morning’s hearing, we are going to hear from opponents. Much of their opposition is based on speculation and false 

assumptions. The criticism ignores the findings of at least 15 State 

studies and a large Federal pilot program. 

The widespread use of cameras in State court proceedings shows 

that still and video cameras can be used without any problems and 

that procedural discipline is observed. All 50 States allow for some 

modern audio-visual coverage of court proceedings. My own State 

of Iowa has done this for almost 30 years. 

There are many benefits and no substantial detriment to allowing greater public access to the inner workings of our courts. Fifteen States conducted studies aimed specifically at the educational 

benefits derived from cameras. They all determined that camera 

coverage contributed to greater public understanding of the judicial 

process. 

Further, at the Federal level, the Federal Judicial Center conducted a pilot program in 1994 which studied the effects of cameras 

in selected courts. That study found, quote, ‘‘small or no effect of 

4

camera presence on participants in the proceeding, courtroom decorum, or the administration of justice,’’ end of quote. 

However, in order to be certain of the safety and integrity of our 

judicial system, we have included a 3-year sunset. It is also important to note that the bill simply gives judges the discretion to use 

cameras in the courtroom. It does not require the judges to do that. 

The bill also protects anonymity of non-party witnesses by giving 

them the right to have their voices and images obscured. 

So this bill doesn’t require cameras, but allows judges to exercise 

their discretion to permit cameras in appropriate cases. I think it 

guarantees safety for our witnesses and doesn’t compromise that 

safety. So I hope we can pass it out of our Committee once again, 

Mr. Chairman. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Grassley. 

We have been joined by Senator Sessions. 

Senator Sessions, would you care to make an opening statement? 

Senator SESSIONS. No, Mr. Chairman. I just would say that I 

chair the Administration and Courts Subcommittee and I have 

given a lot of thought to this. I think we need to go carefully here 

and I am looking forward to the panel and discussing the issues. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

We now turn to another distinguished member of this Committee, Senator Charles Schumer, from the State of New York. 

Senator Schumer went directly from the Harvard Law School to 

the New York Assembly and then directly to the U.S. House of 

Representatives, and then in 1998 was elected to the U.S. Senate, 

much to the dismay of his parents, as he has told the story, right 

from law school to public service without any intervening big 

bucks. 

Chuck Schumer is dedicated to public service in a big way. He 

has run into big bucks, however, not for himself personally, but in 

his prodigious fundraising capabilities. He can give tips to all of his 

534 colleagues on television access. May the record show he is nodding in the affirmative. 

We find him to be very, very active and a great contributor to 

this Committee and we welcome him here this morning for his testimony. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Well, thank you, Mr. Chairman. I appreciate 

your, I guess, kind introduction and am honored to serve with you. 

I would note two quick things. I came to the Congress in 1980. You 

mentioned, I think, 16 new Senators. I was one of seven freshman 

Congressmen from New York, a Democratic blue State, six Republicans and myself. And I think I am—let’s see—yes, I think I am 

the only one who is still there, too, just as you and Senator Grassley are. The other thing that links Senator Grassley on this bill is 

we are the only two ‘‘Charles Es’’ in the Senate who are nicknamed 

‘‘Chuck.’’

5

Anyway, thank you, Mr. Chairman. I want to thank you and 

Senator Leahy for scheduling this hearing. It is an important hearing about people’s ability to participate in this great democracy. 

Public interest in our court system is higher than ever, and that 

is a good thing because our democracy is stronger when participation is strong. No branch of our Government has remained a greater mystery to average people than our Federal courts, and that is 

a shame because the decisions of our courts and the judges who sit 

on them, judges who get a lifetime appointment, have tremendous 

consequences for everyday lives. 

An example: No case has had a more profound effect on the lives 

of Americans as much as when the Supreme Court helped decide 

the Presidential election 5 years ago in Bush v. Gore. We all remember that case. no matter what side you were on, you were riveted every step of the way. There was lots of concern then and 

there still is a lot of talk about that case now, but the Court realized that, and this is what is so interesting. 

With Bush v. Gore, the Court also made history in one other 

way. For the first time in its history, the Court released an audio 

tape immediately after the proceedings. The tape was broadcast all 

over television and all over the radio. Millions of Americans listened intently just to get a feel for what was going on inside the 

hallowed halls of the Supreme Court. And ask any one of them if 

they would have liked to have the opportunity to watch the proceedings and the answer would have been an overwhelming ‘‘yes.’’

Well, if the Court did that in Bush v. Gore, a case very important 

particularly to people who care about politics, when they get a case 

on disability, there are people who care about that maybe more so. 

When they get a case on the environment, there are people who 

care about that. When they get a case on business law, there are 

business leaders who care about that. 

I think the same standard ought to hold, and that is why I am 

proud to cosponsor a bill with my colleague, Senator Grassley. As 

he mentioned, we have worked on this a long time together and we 

have had some success in moving it out of this Committee. I think 

this is the year to make this law. 

The reason for the bill is simple: it is openness. Courts are an 

important part of our Government. The more people know how government works, the better. But the Federal Government, as has 

been mentioned, lags far behind the States. I want to give another 

example in my own home State of how openness worked. 

We have allowed televised trials for decades. It has been a great 

success. The critics say, oh, the cases of strong passion will become 

circuses and everything else. Well, there was no case New Yorkers 

felt more strongly about than the case of Amadou Diallo. Four police officers were eventually acquitted, but they were accused of 

shooting Diallo, a Nigerian immigrant, in cold blood. 

Because the case got such wide concern, the venue was moved 

from the Bronx to Albany, but the judge wisely permitted live TV 

coverage. It allowed anyone who was interested to watch the entire 

trial, whether they lived in the Bronx, the neighborhood where it 

occurred, or elsewhere. The cameras were not disruptive. The lawyers acted professionally. The rights of witnesses were not curVerDate 0ct 09 2002 09:08 Apr 03, 2006 Jkt 026506 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26506.TXT SJUD4 PsN: CMORC
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tailed. Witnesses and jurors were not in the room, and so it didn’t 

diminish the dignity of the court. 

But at the same time, when the public—many people particularly 

in the African-American community were very upset about this and 

when they were able to watch the proceedings, most people agreed, 

whether they agreed with the outcome or not that the jury decided, 

that it was a fair trial. That wouldn’t have happened if we didn’t 

have cameras in the courtroom. For people to just read the newspaper accounts doesn’t give the same thing. 

So this works. Allowing cameras into our courtrooms will help 

demystify the courts. Let the public evaluate how well the system 

works. Only then will the public really be able to decide based on 

facts and real knowledge what changes need to be made. 

Finally, as Senator Grassley mentioned, there are instances 

where cameras are not appropriate and this bill takes care of that 

by granting discretion to the judge. We don’t really tie the judge’s 

hands on this even though, as you note, Mr. Chairman, we probably could, although the court would have to rule on that ala 

Marbury v. Madison. But if the judge thinks that televising a trial would be harmful—

maybe he thinks it is unfair to the defendant, maybe there are privacy concerns—the judge could ban it. It also allows witnesses to 

request, as was mentioned, that their voices and images be obscured. 

So the risk here isn’t turning courtrooms into a circus or unduly 

invading someone’s privacy. The risk is the danger we pose to our 

society and our democracy when we close off our institutions to the 

people they are supposed to serve. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Schumer. 

I turn now to our distinguished ranking member, Senator Leahy. 

Senator LEAHY. Well, Mr. Chairman, I would just as soon wait 

for Senator Grassley. Oh, you are done, OK. Well, then, I will 

speak. 

Chairman SPECTER. Do you think we would call on Schumer before Grassley? 

[Laughter.] 

Senator GRASSLEY. I am sorry you missed it, too. 

Senator LEAHY. I know these two are not just two pretty faces; 

they are here for substance. I didn’t realize Senator Grassley had 

already spoken. I was going to wait for him. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. I am glad to see this hearing. I am the son of 

a printer. My parents not only had a printing business, but for a 

while ran a small newspaper. So I come by my affection for the 

First Amendment very honestly and directly. My father instilled in 

me the sense that the freedom of speech in the First Amendment 

is the foundation of this democracy. But it also assures that we will 

have access to our Government. 

When I was a young man—actually, when I was a young prosecutor in Vermont, Vermont even then had this culture of open 

government. We could talk to our elected officials and meet with 

7

them on a regular basis. You can have balances for security, but 

there has to be this transparency. We have to know what is going 

on. A democracy works best when there is sunshine in government. 

I think right now there is this dramatic shift toward secrecy in 

the government, and that is bad; it hurts the whole country. So we 

have to expand access to government for all Americans. I have 

tried to make all three branches of our Government more transparent and accessible. Congress and its committees, except for a 

rare secret session, are open and carried live on cable television, C–

SPAN, and radio. Members and the committees use the Internet 

and the Web to let us know what is going on. The executive branch 

is subject to FOIA, the Freedom of Information Act. 

We then have the third branch. Now, most judicial proceedings 

are open to those who can travel to the courthouse and wait in line 

and they can see what is going on. But emerging technology could 

invite the rest of the country into that same courtroom. You 

wouldn’t have to travel there. Whether I am sitting in my little 

farm house in Middlesex, Vermont, or somebody is in their office, 

anybody could be in that courtroom, with technology. 

All 50 States have allowed some form of audio or video coverage 

of court proceedings, but the Federal courts lag behind. I have cosponsored several bills to address this, including two bills currently 

pending—the one we have talked about, the Sunshine in the Courtroom Act of 2005, and the Televising Supreme Court Proceedings 

Act with Senator Specter. 

The First Amendment is one of those magnificent bequests to all 

Americans and we have to protect it for succeeding generations. It 

is a fragile gift; it needs nurturing and it needs protection by every 

new generation. Let’s use the technology available to this generation to give even greater guarantees to that amendment and the 

free and open government it facilitates. 

It is time to let some sunshine into our Federal courts. The Federal courts are the bulwark for the protection of individual rights 

and liberties. The Supreme Court is often the final arbiter of constitutional questions having a profound effect on all Americans. 

Why not allow the public greater access to the public proceedings 

of the Federal courts? That is going to allow Americans to evaluate 

for themselves, ourselves, all of us, the quality of justice in this 

country. 

They are there for all 280 million Americans. Let all 280 million 

Americans know what is going on. It can deepen the understanding 

of the work of the courts, but it can also deepen our understanding 

that it is our rights that are there being protected. It is a fascinating subject and it is time for this. 

I remember when I first came to the Senate we did not have television. We brought in radio during the Panama Canal debates. People tuned in throughout the country; they got involved. Then we 

added television. That was an interesting experiment, and sometimes it has been good and sometimes it has been bad. Sometimes 

there has been posturing and sometimes there have been riveting 

matters. But the American people could see what they had a right 

to see if they traveled to Washington, stood in line and went in 

there. Well, I can see what goes on in my Federal court if I travel 

8

to the court, stand in line and go in there. I want to be able to see 

from wherever I am. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Just a question or two, Senator Schumer. Do you think that the 

presence of the cameras in the Senate has any significant effect on 

promoting grand-standing or hot-dogging among the Senators? 

Senator SCHUMER. I really don’t. I think that the overall benefit 

of having C–SPAN, with millions of Americans watching—there 

are now call-in shows where people respond to what is going on—

has been extremely salutary for our democracy. I think it is great. 

Chairman SPECTER. That is the next question. What do you hear 

from your constituents about viewing C–SPAN and watching the 

Senate proceedings, and how much enlightenment does it give 

them as to what we are doing? 

Senator SCHUMER. Mr. Chairman, I am amazed at how many 

people actually tune into C–SPAN and how often you hear it. I 

mean, maybe the average person doesn’t, but a large number of 

people do. And, again, it has demystified the Congress. It is different having an intermediary tell you what happened through 

their eyes rather than seeing it through your own eyes. And what 

C–SPAN does and what cameras in the courtroom do is let anyone 

who wants to, as Patrick Leahy said, view it themselves. 

Chairman SPECTER. How about the C–SPAN coverage of hearings? How many of your friendly insomniacs tell you that they saw 

you at 3 a.m. or at some other ungodly hour? 

Senator SCHUMER. I agree. You hear about it all the time for 

hearings and for everything else. Have there been occasional times, 

I guess, when people might regret having C–SPAN in the Senate 

chamber and the hearings? Once in a blue moon, very, very rarely, 

and the benefit is every day, every minute. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. The Chairman talked about the insomniacs at 

three o’clock, but they are making that choice to watch it. 

Senator SCHUMER. You got it. 

Senator LEAHY. And I know the number of e-mails and letters I 

get even from a little State like Vermont from the number of people 

who watch. But doesn’t it also, though, come down again to if you 

have an interest in what is going on in that court, you can watch 

it? 

Senator SCHUMER. Exactly. 

Senator LEAHY. You have been there for Supreme Court arguments, as I have. I am a member of the Supreme Court bar. Senator Specter has argued cases there. We know that some of the 

cases can be awfully arcane. Fine, but the case that we may find 

arcane may have a very, very direct relationship to somebody else’s 

rights or interests. Why not be able to watch it? 

Senator SCHUMER. Right. 

Senator LEAHY. And I again I come back to the point that if you 

can spend the money to travel to where the court is and stand in 

line, you might get in and watch it. It is an open courthouse. Why 

shouldn’t it be open to everybody? 

9

Senator SCHUMER. Exactly. 

Senator LEAHY. So, Mr. Chairman, I thank you for having these 

hearings, and I agree with Senator Schumer and I agree with you 

and Senator Grassley. 

Chairman SPECTER. Senator Sessions. 

Senator SESSIONS. I thank the Chairman and, Senator Schumer, 

for your remarks. I think they are worthy of serious consideration. 

We serve on the Courts Subcommittee together. During that Democratic spring, you chaired the Subcommittee, and now I chair that 

Subcommittee. 

I believe the courts are somewhat different than Congress. I believe the primary charge of a court is to provide justice in the case 

before it, not to entertain and to create circumstances that might 

undermine that. So as a person who spent a lot of time in the 

courtroom who dealt with witnesses, talked to them, held their 

hand, seen them cry before going in there, many times I comforted 

them to say, well, probably all that is going to be there is some of 

the family and a few other people, and don’t worry about that. That 

was some comfort to them. 

Judges and polls show that witnesses would be affected by the 

fact that what they may say about most intimate, personal, emotional issues, family disputes or love affairs and those kinds of 

things, personal admissions of errors and wrongdoing, or maybe 

even criminality that they participate in that they have to testify 

to—I think it is a basis for concern particularly in the trial court. 

The ability to get truth and witnesses to cooperate and testify accurately would be undermined. That is what the judges believe and 

that is where I am, particularly on the trial court. 

I am not unhappy with the process that is established now for 

the circuit courts, and believe the proposed legislation that allows 

the presiding judge to make the call rather than the judicial council would be less satisfactory. That would be an aberrational process that would be not as justified, in my view, as a uniform council 

policy. 

The Supreme Court obviously has begun to loosen up some. They 

have allowed their arguments to be taped and produced, but they 

likewise have given this consideration quite a number of times and 

have concluded that they do not wish their lawyers and the process 

to be a television show, and that they would prefer it be focused 

on the law of the case. 

The judges ask awfully technical, legal questions. That is what 

the American rule of law often is, is standing and procedural matters and statutes of limitations and those kinds of things. There 

could be a tendency, I think, even for judges to go more away from 

those issues and to the dramatic issue that may have attracted the 

attention of the public. So I think the court is wise to consider this. 

I think someone asked new Chief Justice Roberts what his views 

were on this subject, and I am not sure what he said, but he obviously has left it open and the Court has the ability to do that. 

So, Mr. Chairman, I know that there is a strong push for this. 

I know a lot of the TV networks would like to see this occur. I respect what they do and respect the work that they perform, but my 

feeling at this point is we should be very careful about this. And 

10

particularly by personal experience with Federal district courts, we 

should not go forward to allow cameras in the courtroom. 

Chairman SPECTER. Senator Sessions, when you say you weren’t 

quite sure what Chief Justice Roberts said in response to the question—

Senator SESSIONS. I think you asked it, maybe. 

Chairman SPECTER. Oh, I asked him. 

Senator SESSIONS. What did he say, Mr. Chairman? 

Chairman SPECTER. Well, first, I want to comment where you 

said you weren’t sure about what he said. Many of us weren’t sure 

about what he said in answer to many questions. 

[Laughter.] 

Chairman SPECTER. His response to that question was that he 

had an open mind. That was before he was confirmed, however. My 

view has been that the nominees answer about as many questions 

as they think they have to and they are as compliant as they can 

be consistent with their consciences and what they may do later. 

Senator SESSIONS. You are a wise and experienced Chairman, 

Mr. Chairman. 

Chairman SPECTER. We will revisit that. There are more people 

on television. I walked into my office this morning and saw Justice 

Breyer on television. You see Justice Scalia on television. It is coming. 

Senator SESSIONS. Mr. Chairman, I would say this, that in the 

evaluation of it I think the least detrimental would be the Supreme 

Court. The next least detrimental consequences perhaps would be 

the courts of appeals, and the most detrimental from my perspective would be the trial courts. So we will just see how it goes and 

I look forward to the hearings. 

Chairman SPECTER. Thank you for that, Senator Sessions. I am 

putting you down in my tally sheet as leaning. 

[Laughter.] 

Chairman SPECTER. We are going to now turn to the judicial 

panel. 

Thank you very much for joining us, Senator Schumer, and you 

are welcome to stay. 

Senator SCHUMER. Thank you. 

Chairman SPECTER. Our next witness is Judge Diarmuid 

O’Scannlain, a Ninth Circuit, having been confirmed in 1986. He 

has had a distinguished record in public service in a variety of positions. He was on the Advisory Panel for the U.S. Secretary of Energy. He had been the Director of the Oregon Department of Environmental Quality, Deputy State Attorney General for Oregon. He 

served in the Judge Advocate General Corps. He has a bachelor’s 

from St. John’s and a law degree from Harvard, and a J.D. and 

LL.M. from the University of Virginia. 

Thank you for joining us, Judge O’Scannlain, and we look forward to your testimony. 

STATEMENT OF DIARMUID F. O’SCANNLAIN, JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND, 

OREGON 

Judge O’Scannlain. Thank you very much, Mr. Chairman and 

members of the Committee. My name is Diarmuid O’Scannlain, 

11

United States Circuit Judge for the Ninth Circuit, with chambers 

in Portland, Oregon. I thank you for inviting me to share my personal experience with televised proceedings of the U.S. Court of Appeals for the Ninth Circuit. 

Our court is one of two courts of appeals involved in a pilot program under which audio equipment, still cameras or video cameras 

can be admitted to the courtroom upon request and with approval 

from the panel hearing the case. Since 1991, until last week, we 

have logged 205 requests to allow media into oral arguments. Of 

these requests, the panels granted 133. 

But to give some perspective, the Ninth Circuit has heard oral 

arguments in approximately 24,000 cases since 1991, meaning that 

media requests for videotaping or live television have been requested in less than 1 percent of the total cases receiving oral argument. 

To gain access to a Ninth Circuit courtroom, a member of the 

media with cameras need only fill out a simple form requesting 

very basic information. The clerk of the court then transmits the 

request to the panel, which can grant or deny the request by majority vote of the judges assigned to that case. 

The Ninth Circuit requires media representatives to obey modest 

guidelines which request proper attire, ban the use of flash photography or other potentially distracting filming, prohibit the broadcast of any audio conversations between clients and attorneys, and 

limit the total number of cameras that can be present for any single oral argument. 

The Committee might also be interested to know that the Ninth 

Circuit currently makes audio playback of all oral arguments available through its website the day after the hearing, and frequently 

provides a live audio feed of oral arguments in certain cases. Further—and this may not be generally known—all arguments are recorded on the court’s unobtrusive internal videotaping system for 

the court’s own records. 

I have personally had 44 requests to allow cameras in oral arguments in which I have been a panel member, of which nearly 80 

percent have been granted. In other words, I have personally participated in 35 appellate oral arguments which were videotaped or 

televised live, which experience is the basis of my testimony today. 

These requests range from high-profile, attention-grabbers to the 

comparatively banal. Among the more controversial three-judge 

cases were Brown v. Woodland School District which considered 

whether certain Sacramento area classroom activities required children to practice witchcraft, in violation of the First Amendment. 

Understandably, cases involving elections and the right to vote 

have generated substantial public interest and press coverage. For 

example, I sat as a member of a limited en banc panel of 11 judges 

in a very high-profile, live video coverage of a case evaluating 

whether the California recall election of Gray Davis, the Governor, 

should be enjoined as a violation of the 14th Amendment because 

of the use of punch card balloting machines. 

Of course, not every request to bring media into our courtrooms 

has been allowed. Panels, perhaps motivated by concern for the 

parties, have occasionally shunned cameras. For example, in Compassion in Dying v. Washington, the court grappled with whether 

12

a State statute criminalizing the promotion of suicide violated the 

14th Amendment. 

Some judges will vote to deny video access unless assured that 

the media will broadcast the tape on a gavel-to-gavel basis. Indeed, 

just last weekend C–SPAN aired the entire oral argument in 

Planned Parenthood v. Gonzales, a partial birth abortion case that 

was argued several weeks before. 

Finally, Mr. Chairman, I appear before you today both in my individual capacity supportive of cameras in appellate courtrooms 

and on behalf of the Judicial Conference of the United States, 

which opposes cameras in trial courtrooms. Trial courts and appellate courts differ in important respects, primarily with respect to 

the presence of victims, witnesses, juries and, of course, the parties 

themselves. 

For this reason, I have serious concerns regarding the placement 

of cameras in trial courts, and suggest that questions about cameras in trial courts be directed to my district court colleague from 

Pennsylvania, Judge Jan DuBois. 

I thank you again, Mr. Chairman. I will be happy to take any 

questions that you or the Committee members may have with respect to the use of cameras in the circuit appellate setting. 

Thank you. 

[The prepared statement of Judge O’Scannlain appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge O’Scannlain. 

Our next witness is United States District Judge Jan DuBois 

from the Eastern District of Pennsylvania. He has served there 

since 1988 and prior to that time had a very extensive trial practice in Philadelphia with the law firm of White and Williams. He 

had clerked for Circuit Judge Harry Kalodner. 

He received his bachelor’s degree from the University of Pennsylvania in 1952 and his law degree from Yale in 1957, and in the 

interest of full disclosure has been a friend of mine for 50 years. 

I was at Penn with him. I did not make Sphinx, but Buddy DuBois 

did. He had a distinguished record at the Yale Law School and has 

been really an outstanding Federal judge. 

He has handled major cases involving the prison system and has 

no peer when it comes to hours in the courtroom, frequently running up the GSA bills on Saturday afternoon for air conditioning 

in the summer and heating in the winter. He is well worth it and 

beyond. 

Welcome, Judge DuBois. The last time you were here was for 

your confirmation hearing and we have some tougher questions for 

you today. Please proceed. 

STATEMENT OF JAN E. DUBOIS, JUDGE, U.S. DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA, PHILADELPHIA, PENNSYLVANIA 

Judge DUBOIS. Mr. Chairman, members of the Committee, my 

name is Jan DuBois. I am presently a judge on the United States 

District Court for the Eastern District of Pennsylvania. I have 

served on the district court for 17 years. I am appearing before you 

today in my personal capacity. I appreciate the invitation to testify 

and hope my testimony will be useful to you. 

13

As you requested, my statement will cover the pilot program providing for electronic media coverage of civil proceedings in selected 

Federal trial and appellate courts—two courts of appeals, the Second Circuit and the Ninth Circuit, and six district courts, including 

my district. 

The pilot program authorized coverage only of civil proceedings. 

Guidelines were adopted by the Judicial Conference, and I have appended a copy to my written testimony. The guidelines set forth 

the procedures to be followed for using cameras in the courtroom. 

Significantly, they also prohibited photographing of jurors and they 

provided that the presiding judge had discretion to refuse, terminate or limit coverage. 

To give you some idea of the scope of the program, from July 1, 

1991, through June 30, 1993, there were 257 applications for media 

coverage in all of the pilot courts. Of these, about 72 percent of the 

applications were approved. Of this total, 257 cases in which applications were made, about 30 percent were submitted in the Eastern 

District of Pennsylvania. 

The Eastern District of Pennsylvania conducted a study at the 

completion of the pilot program on December 31, 1994. More cases 

had been the subject of applications and the percentages remained 

about the same. Significantly, the breakdown of the cases in which 

applications were filed in the Eastern District disclosed that about 

49 percent of them involved civil rights. Next, in terms of percentage of requests were tort cases—21 percent. 

The Federal Judicial Center evaluated the program and I have 

a copy of their report. It is entitled ‘‘Electronic Media Coverage of 

Federal Civil Proceedings’’ in this program. It was published in 

1994 and I understand it is on the Federal Judicial Center website. 

That report included ratings of effects of cameras in the courtroom 

by district judges who participated in the program and I have appended a copy of that part of the report to my written testimony. 

The ratings by the judges who participated in the program were 

both favorable and unfavorable. For me, the most disturbing ratings were these: 64 percent of the participating judges reported 

that, at least to some extent, cameras made witnesses more nervous. Forty-six percent of the judges believed that, at least to some 

extent, cameras made witnesses less willing to come to court. 

Forty-one percent of the participating judges found that, at least to 

some extent, cameras distracted witnesses, and 56 percent of the 

participating judges found that, at least to some extent, cameras 

violated witnesses’ privacy. 

In my experience, I had, I believe, a total of four applications for 

cameras in the courtroom. I granted three, denied one. Strangely, 

the media—I think it was Court TV—covered what I considered to 

be the least dramatic case, a product liability case, and rejected 

cameras in the prison class action, to which the Chairman referred. 

In deciding whether to allow cameras, I conducted a conference. 

The most commonly advanced objections offered by the attorneys 

were the adverse effect on the parties and the adverse effect on 

witnesses. In some cases, plaintiffs were concerned about disclosing 

matters of an extremely private nature, and Senator Sessions has 

already mentioned that. And in at least one case, a defense attorney said the threat of a televised trial would cause the defendant 

14

to consider settlement, regardless of the merits of the case. As far 

as the adverse effect on witnesses, counsel were concerned that 

cameras would make them less willing to appear. And, in general, 

the attorneys’ objections tracked the comments of the judges who 

participated in the program. 

I will say this about cameras in the courtroom: My personal view 

is that the disadvantages far outweigh the advantages. I say that 

mindful of the fact that our courtrooms have to be open, and indeed 

I think they are open. My concern about cameras in the courtroom 

stems from the fact that I think the cameras do more than just report proceedings. They affect the substance of the proceedings, and 

I say that based on my experience as a trial judge and my experience for 30 years as a trial attorney. 

I think that the impact, or the potential impact, of cameras on 

jurors, on witnesses and on parties augurs for not allowing cameras 

in the district courts. The paramount responsibility of a district 

judge is to uphold the Constitution, which guarantees citizens the 

right to a fair and impartial trial. In my opinion, cameras in the 

district courts could seriously jeopardize that right because of their 

impact on parties, witnesses and jurors. 

[The prepared statement of Judge DuBois appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge DuBois. 

Judge O’Scannlain, you testified that you have been a party to 

35 appellate proceedings and you have come to the conclusion that 

you think it is desirable to have cameras in the courtroom, correct? 

Judge O’SCANNLAIN. At the circuit court of appeals level, yes. I 

think our experience now over 13 years—and it has continued since 

1991 and is still on—has indicated that it seems to work well and 

the vast majority of us feel that it is perfectly acceptable. 

Chairman SPECTER. Any material impact on the lawyers who are 

presenting the cases or on the judges who are presiding in terms 

of responses for grand-standing—

Judge O’SCANNLAIN. Well, you always wonder here and there—

Chairman SPECTER. Let me finish the question, Judge. 

Judge O’SCANNLAIN. I am sorry, excuse me, I am sorry. 

Chairman SPECTER. Let me finish the question—or in any way 

altering their regular conduct? 

Judge O’SCANNLAIN. Well, you always wonder here and there of 

perhaps some aberrational moments, but by and large I have never 

been offended by anything that the lawyers or my colleagues have 

said in a televised oral argument in my court. 

Chairman SPECTER. You maintained your same judicial demeanor, notwithstanding the presence of the cameras? That is a 

leading question. 

Judge O’SCANNLAIN. Well, we certainly try to, and hopefully we 

do. 

Chairman SPECTER. Judge DuBois, how many cases were televised in your courtroom? 

Judge DUBOIS. In my courtroom, only one. I approved three applications. Only one case, a product liability case which did not involve personal injuries—it involved the recall of a line of bottled 

water—

15

Chairman SPECTER. What was the impact of cameras in the 

courtroom, if any, on you? 

Judge DUBOIS. The answer to that question is none on me, and 

in that case, because of the rather bland nature of the case, the impact was positive. There was no negative impact at all. The parties 

did not object, the witnesses did not object. Cameras did not focus 

on the jurors, but I asked the jurors after they were empaneled 

whether they had any objection to having television cameras there 

and they replied no. 

I should add—

Chairman SPECTER. So why, with your sole experience with cameras in your courtroom being positive, do you come to a different 

conclusion as a generalization? 

Judge DUBOIS. First of all, that case was a case that was tried 

on the first day of the program, July 1, 1991. As my experience 

with the program and with attorneys who objected to cameras in 

the courtroom expanded, I concluded that there was an effect on 

some witnesses, on some jurors and on some parties. 

Chairman SPECTER. But as a result of having cameras in the 

courtroom? 

Judge DUBOIS. Well, I think the effect of having cameras in the 

courtroom is a telling effect. Let me give you an example. The Federal Judicial Center reported that a large percentage of the judges 

concluded that there was an impact on witnesses, that witnesses 

became more nervous. Jurors are told to watch the way a witness 

responds to a question. If a witness is nervous because of cameras 

in the courtroom, a juror might very well misinterpret that to mean 

the witness is nervous because the witness is not telling the truth. 

That is a dynamic that I never want to see happen in a courtroom 

in which I am presiding. 

Chairman SPECTER. It didn’t happen in the case that you presided over where the cameras were present? 

Judge DUBOIS. It was a rather bland case involving the recall of 

bottled water. 

Chairman SPECTER. Well, how about cameras for bland cases? 

Judge DUBOIS. I don’t think the media would go for that, Senator. 

Chairman SPECTER. Well, give them the choice. Don’t bar them 

if it is something they might choose to do. 

Judge DUBOIS. Senator, may I say this? And I am mindful the 

lights are going on and I am mindful of your experience in the Supreme Court in the Navy Yard argument, and I was afraid that 

today would be pay-back time for me and that I would be cutoff in 

mid-word. 

Chairman SPECTER. Time is not up. Give us a chance. Chief Justice Rehnquist, as you know, was looking for an occasion to cutoff 

a lawyer in the middle of the word ‘‘if.’’

Judge DUBOIS. Well, I thought you might try to do that to me 

today. Thank you for not doing that, sir. 

I am concerned that any compromise of an individual’s right to 

a fair trial, any intrusion on that right is not warranted because 

I think we have open courtrooms now and the question is do we 

need courtrooms to be more open. And I think if you can answer 

that question by saying there would be no trampling of individual 

16

rights in trials, that is fine. But I don’t think we can say that based 

on the information that is presently available and I wouldn’t want 

to sacrifice the right to a fair trial in both civil and criminal cases 

to make courtrooms more open. And in saying that, I want to add 

that I certainly favor open courtrooms, but believe our courtrooms 

are open now. 

Chairman SPECTER. Well, my time expired in the middle of your 

answer, so I am going to yield to Senator Sessions. 

Senator SESSIONS. Take more time, Mr. Chairman, if you need 

it. 

Chairman SPECTER. No. I am going to stick to the time and 

maintain our Committee record on that, but I will comment that 

we are all devoted to a fair trial and we are not going to do anything that would impede on that. And I think the legislation which 

Senator Grassley testified about leaves it open to eliminate the 

cameras where the judge feels there would be an impingement or 

where participants and parties to the trial object. 

Senator Sessions.

Senator SESSIONS. Thank you. 

Judge DuBois, the American ideal of justice is to create a climate 

for the very fairest outcome in every case that comes in a court of 

law in this country. Wouldn’t you agree with that? 

Judge DUBOIS. I certainly would. 

Senator SESSIONS. We even give you two judges a lifetime appointment. We can’t even cut your pay because we want an independent judge to preside over the trial who will take steps to make 

sure that trial is conducted in a way that guarantees that extraneous emotional forces don’t come together in a way that might adversely impact a fair decisionmaking process. Wouldn’t you agree 

with that? 

Judge DUBOIS. I would, sir. 

Senator SESSIONS. And in your opinion, based on your years on 

the bench, you have concluded that cameras in the courtroom could 

be an adverse factor in guaranteeing as fair an outcome as we can 

possibly achieve? 

Judge DUBOIS. That is correct, sir. 

Senator SESSIONS. Looking at the polling data that they did in 

New York to review their television coverage, it says they polled—

and I think it is pretty startling, really. Forty-three percent of citizens would be less willing to serve on a jury if there were cameras 

and 54 percent would be less willing to testify as a witness to a 

crime if cameras were present. I think that is even more troubling. 

A New York survey of voters conducted by Bill Bowers of Northwestern University found that 4 out of 10 potential victims would 

be less willing to testify in a criminal case if cameras were present. 

The Federal Judicial Conference study found that 64 percent of 

participating judges in the pilot program reported at least to some 

extent, as you noted, cameras make witnesses more nervous. 

Do you agree? Are those polling data numbers consistent with 

your experience as a judge and your own observations? 

Judge DUBOIS. I agree with the conclusions. My experience isn’t 

broad enough to reflect specific percentages, but I believe every one 

of the factors that you mentioned from the New York study and the 

17

Judicial Center study are factors that weigh against a fair trail and 

should not be compromised to make our courtrooms more open. 

Senator SESSIONS. Well, we just have to be careful. Trials are 

critically important crucibles to ascertain truth. They are not for 

entertainment; they are there to help decide correctly complex, 

often emotional disputes between defendants and victims and prosecutors, and between civil litigants and that sort of thing. 

Let me ask Judge O’Scannlain, now, if you do coverage of the appellate courts, does the coverage cover the whole hearing and then 

when it is put on the six o’clock news, do they just excerpt some 

small part of it, and does that give you a concern that perhaps an 

incorrect perception might be conveyed to the public? 

Judge O’SCANNLAIN. Senator, there have been a variety of experiences. Some of the cases in which I participated were video only, 

with no audio, and snippets from that were used in the public 

broadcasting special program about the Ninth Circuit. 

In other situations, as I indicated, some of my colleagues will 

vote not to grant permission unless there is a commitment by C–

SPAN or whatever the particular media entity is that they would 

run it on a gavel-to-gavel basis. So it would be the full 20 minutes 

and a 10-minute argument, or the full 40, that kind of thing. That 

is why I thought it was quite telling and quite impressive that—

Senator SESSIONS. Let me just suggest that a local TV station 

that might have an interest in it would not be obligated to show 

the whole argument at six o’clock. They could simply show one 

snippet from it, is that correct? 

Judge O’SCANNLAIN. Yes, that is true, and that specifically happened in a case which was argued in San Francisco having to do 

with a cross on public property. There was a lot of local interest 

in it, and as a matter of fact the local Bay area television stations 

did indeed show it on a snippet basis. 

Senator SESSIONS. Mr. Chairman, my time is up. 

Chairman SPECTER. Thank you very much, Senator Sessions, and 

thank you very much, Judge O’Scannlain and Judge DuBois. There 

are many, many more questions we could ask. We have your written statements. We have a very long third panel, so we are going 

to thank you and we may be following up with some additional 

questions for the record. 

Judge O’SCANNLAIN. It would be our pleasure. Thank you very 

much, Mr. Chairman. 

Judge DUBOIS. Thank you, Mr. Chairman. 

Chairman SPECTER. We will now call panel three—Ms. Barbara 

Bergman, Mr. Peter Irons, Mr. Seth Berlin, Mr. Brian Lamb, Mr. 

Henry Schleiff and Ms. Barbara Cochran. 

Our first witness on this panel is Ms. Barbara Bergman, who is 

testifying in her capacity as President of the National Association 

of Criminal Defense Lawyers. She has been a professor of law at 

the University of New Mexico School of Law. She worked as a staff 

attorney for the public defender here in Washington, was associate 

counsel for President Carter. She has a bachelor’s degree from 

Bradley and a law degree from Stanford. 

Thank you for joining us, Ms. Bergman, and the floor is yours 

for 5 minutes. 

18

STATEMENT OF BARBARA E. BERGMAN, PRESIDENT, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, 

WASHINGTON, D.C. 

Ms. BERGMAN. Mr. Chairman and distinguished members of the 

Committee, as President of the 13,000-member National Association of Criminal Defense Lawyers, NACDL, I am honored to be 

here today to share the association’s views regarding the important 

issue of cameras in Federal courtrooms. 

While current rules do not permit cameras in Federal district 

courts, NACDL’s members have experience with televised proceedings in their State courts. And in discussing this issue recently 

with our board of directors, it was apparent that there is no consensus within the defense community regarding the overall desirability of cameras in courtrooms in criminal cases. The position of 

our association reflects that diversity of experience and opinion. 

The Supreme Court has held that there is no constitutional right 

of access for cameras in the courtroom. As a result, in criminal 

cases the purported value of televised court proceedings must be 

weighed against the accused’s constitutional rights to due process 

and a fair trial. 

The NACDL believes that S. 829 does not strike the right balance. We would like to see the bill amended so as to authorize cameras in district court criminal proceedings and interlocutory appeals only with the express consent of the parties. In all other 

criminal matters coming before the United States courts of appeals 

and the Supreme Court, NACDL favors access for cameras, and 

there are many arguments on both sides. 

To the extent that cameras in the courtroom promote greater 

public understanding of the judicial process and the constitutional 

protections that apply to that process, we generally support their 

expanded use. Not unrelated is the notion that televised trials may 

encourage greater preparation and a higher standard of professionalism. 

But in the alternative, the arguments against cameras, there are 

many that concern us a great deal. First is pressure on jurors. The 

decision to televise a trial signals to the jury that their verdict is 

likely to be scrutinized by the viewing public, and defendants are 

less likely to receive a fair trial when jurors feel the need to reconcile their verdict with strong public sentiments in favor of a particular result. 

As a member of Terry Nichols’s defense team in the State capital 

prosecution arising from the Oklahoma City bombing, we were extremely concerned about the possibility of strong community pressures being brought to bear on Oklahoma jurors if the court permitted cameras in the courtroom. We objected to the presence of 

such cameras under Oklahoma’s rule permitting the defendant to 

object to cameras and ultimately they were excluded. 

While it is impossible to measure the precise impact cameras 

may have had on that trial, the fact that some of the jurors have 

refused to speak to the media and others did so over a year after 

the verdict reinforced my belief that excluding cameras reduced at 

least some of the community pressure on the jury in the small community of McAlester, Oklahoma. Finally, past television coverage 

19

may make it more difficult to select an impartial jury in case there 

is ever a retrial. 

We also share the concern about pressure on witnesses, that it 

will discourage witnesses from testifying, that it may affect the 

ability of them to testify in a way that doesn’t distort what they 

have to say. The concern we have is that it will affect the jury’s 

evaluation of their credibility. 

We also have concern about pressure on the defendant from cameras that can affect the accused’s demeanor and willingness to testify. And more fundamentally, the prospect of extended media coverage may discourage the accused from exercising their right to 

trial in the first place, and it is of particular concern in cases involving humiliating accusations or corporate defendants unwilling 

to expose themselves to negative publicity. 

It is also of particular concern in capital cases where evidence of 

childhood sexual and physical abuse is frequently offered in mitigation. The prospect that such evidence may be broadcast across the 

country may cause a defendant to hide such information even 

though it could save his life. Finally, even when the accused is acquitted, the stain on their reputation is not easily erased and camera coverage may exacerbate this unwarranted punishment. 

Given these concerns, the sponsors of S. 829 have wisely avoided 

a rule authorizing unrestricted camera access. But rather than 

placing the ultimate decision in the hands of the presiding judge, 

we think the consent of the parties—the accused acting with the 

advice of counsel and the government—should be required before 

cameras are permitted to televise criminal trials or interlocutory 

appeals. 

The positive or negative effects of cameras depend on the facts 

and circumstances of each case. The parties who are familiar with 

the witnesses who will testify, the evidence that will be offered and 

other facts that might indicate the potential for prejudice are in the 

best position to determine the appropriateness of cameras. Moreover, permitting the parties to withhold their consent avoids the 

time-consuming distraction of litigation regarding the judge’s decision to permit or forbid that coverage. 

While we support efforts to ensure more sunshine on our democratic institutions, that goal should not be allowed to eclipse the 

fundamental purpose of a criminal trial, which is not education or 

entertainment, but justice. 

[The prepared statement of Ms. Bergman appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Ms. Bergman. 

Our next witness is Professor Peter Irons, Professor Emeritus of 

Political Science and Director of the Earl Warren Bill of Rights 

Project at the University of California in San Diego. Professor Irons 

has authored six books on the Supreme Court and served two 

terms on the national board of the ACLU. He has an undergraduate degree from Antioch, a Ph.D. in political science from 

Boston University, and a law degree from Harvard. 

Thank you very much for coming in today, Professor Irons, and 

the floor is yours. 

20

STATEMENT OF PETER IRONS, PROFESSOR OF POLITICAL 

SCIENCE, EMERITUS, UNIVERSITY OF CALIFORNIA AT SAN 

DIEGO, SAN DIEGO, CALIFORNIA 

Mr. IRONS. Senator Specter and Senator Sessions, I am very glad 

to be here this morning. I am going to limit my comments—and my 

statement is part of the record—if I might. 

Chairman SPECTER. Your full statement will be made a part of 

the record, as are all of the statements. 

Mr. IRONS. I would like to limit my comments to television coverage of the Supreme Court, and I base that on my experience with 

providing to the public access to the audio arguments, the audiotape arguments before the Supreme Court. Let me just give a little 

history behind that. 

Back in 1955, Chief Justice Earl Warren initiated the 

audiotaping of Supreme Court oral arguments. I think he did so because he recognized in the past term the historic importance of arguments in Brown v. Board of Education, both the first and the 

second cases. He felt that keeping those arguments on tape and 

making them accessible to the public would serve not only an historic, but a civic benefit particularly for students. 

Now, until 1986 there was no restriction on access to those tapes. 

But in 1986 when Fred Graham of CBS News obtained a copy of 

the Pentagon Papers oral argument and played excerpts of it on 

television and radio, Chief Justice Burger imposed restrictions on 

access to those tapes, limiting it to what were termed private research and teaching. 

I decided in 1991, having heard some of these tapes when I was 

in law school, that it would be a good educational project to make 

them available to the public, particularly for use in schools. So I 

obtained copies of 23 historical oral arguments, including Roe v. 

Wade; Miranda v. Arizona; the Watergate tapes case, United States

v. Nixon; and the Pentagon Papers case. 

Simply to illustrate, with the Committee’s indulgence, I would 

like to just push a button right here and for less than a minute 

bring you into the Supreme Court chamber for part of the argument by Thurgood Marshall, then chief counsel for the NAACP 

Legal Defense and Education Fund, in the historic case of Cooper

v. Aaron, and I hope this will be audible. 

[Audiotape played.] 

Mr. IRONS. Now, I played that, Mr. Chairman, to—

Chairman SPECTER. Mr. Irons, I don’t think we all heard that. 

I will give you a little extra time. Summarize what was just played 

on the tape. 

Mr. IRONS. All right. It was an argument by Thurgood Marshall 

about the experiences of the African-American children in Little 

Rock when they were being escorted into the schools through mobs 

and how—

Chairman SPECTER. And what case was this in? 

Mr. IRONS. This was in Cooper v. Aaron, in 1958. 

Now, my point here is very simple that these tapes have been 

played in thousands and thousands of school rooms, and I would 

be glad to enter this into the record, as well, a copy of a set of those 

tapes. My own experience and the experience of hearing from literally hundreds of teachers and students who have heard these 

21

tapes is that they would very much appreciate the chance not only 

to hear these arguments, which very few of them have been able 

to witness in person, but also to see the arguments in the Supreme 

Court. There is nothing, I think, more educational than that opportunity, making it available to the public, and particularly to students, to do that. 

This past Monday, I was talking to a class in judicial process at 

Missouri State University in Springfield and I asked the class—and 

they had heard excerpts of these tapes, about 50 students, and I 

said how many of you would really appreciate the opportunity to 

be able to witness these arguments in person on video to see the 

lawyers argue the cases and the judges ask questions. And there 

was a unanimous show of hands in support of that project. 

So I think, in conclusion, Mr. Chairman, Senator Leahy and Senators Sessions, that there would be a great public benefit. I also 

have available a statement that I received yesterday by e-mail from 

Chief Judge Mary Schroeder, of the Ninth Circuit, on which Judge 

O’Scannlain sits, I think backing up his testimony, but also saying 

that ‘‘In my opinion, the Supreme Court and the public would benefit from at least experimenting with televised oral arguments in 

cases that, like the California case, are of intense public interest 

and presented by counsel of the highest ability.’’

I would like to submit that statement as well. 

Chairman SPECTER. It will be made part of the record. 

[The prepared statement of Mr. Irons appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Irons. 

We now turn to Mr. Seth Berlin, a partner in the law firm of Levine Sullivan Koch and Schulz. He has handled a variety of First 

Amendment, defamation, privacy and reporter’s privilege cases. He 

has been nominated to the governing Committee of the American 

Bar Association’s Forum on Communications Law. He has a magna 

cum laude degree from Brown University and is a cum laude graduate of the Harvard Law School. 

The floor is yours, Mr. Berlin. 

STATEMENT OF SETH D. BERLIN, LEVINE SULLIVAN KOCH 

AND SCHULZ, LLP, WASHINGTON, D.C. 

Mr. BERLIN. Thank you, Mr. Chairman and members of the Committee. I really appreciate the opportunity to testify today. 

At a fundamental level, ours is a Government in which the people are sovereign and therefore possess the right to observe our 

Government in operation. As the Supreme Court has explained, 

and as Senator Grassley alluded to in his testimony this morning, 

people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. Simply put, our democracy works better 

when people understand how their Government institutions operate, and our Government institutions work better when their operations are understood and scrutinized by the people. 

We have a constitutionally required right of access to court proceedings and it cannot be seriously disputed that camera coverage 

will materially further most people’s exercise of that right. The 

simple truth, as the Florida Supreme Court put it in authorizing 

22

cameras into that State’s courts back in 1979, is that newsworthy 

trials are newsworthy trials and they will be extensively covered by 

the media both within and without the courtroom, whether cameras are permitted or not. 

It makes a lot more sense to provide the public with a picture 

of the actual in-court proceedings rather than having the public 

getting its information about trials solely from second-hand summaries, or worse, potentially prejudicial and inflammatory characterizations by interested third parties. 

Next, I would like to point out that there is generally no constitutional bar to camera coverage. Following the Supreme Court’s 

decision in Chandler v. Florida, courts confronting this issue routinely have concluded that television coverage does not interfere 

with the due process rights of a criminal defendant or of other parties or participants in a court proceeding. 

I would also like to talk about the benefit of at least affording 

judges discretion in this area. A number of courts that otherwise 

would have found camera coverage warranted have felt constrained 

by either Federal Rule of Criminal Procedure 53 or by the Judicial 

Conference guidelines that prohibit camera coverage in trial courts. 

For example, in General Westmoreland’s landmark libel trial 

against CBS, the parties consented to CNN’s televising the proceedings. Then-trial Judge Leval also made extensive findings that 

favored camera coverage. He nonetheless denied CNN’s petition 

based on his conclusion that the rules of the Judicial Conference 

and of his own court left him no choice—a determination that was 

then upheld by the Second Circuit. 

Earlier this fall, a Federal district court in Pennsylvania reached 

a similar conclusion, relying on the Judicial Conference guidelines. 

The court denied a request by Court TV to televise the trial over 

the Dover, Pennsylvania School Board policy of suggesting the 

study of intelligent design along with the study of evolution, despite the profound national interest on the subject, the consent of 

all of the parties and the fact that the trial involved none of the 

usual potential objections that people raise in authorizing camera 

coverage. 

Legislation granting judges at least discretion to authorize camera coverage in appropriate circumstances may well have yielded 

a different result in these important matters and many other important controversies of the future. 

Finally, I want to talk briefly about the experience of those 

courts that have authorized camera coverage. Both the Federal Judicial Center study of a Federal court pilot program and similar 

studies of experimental programs in a large number of States have 

confirmed that camera coverage does not interfere with the fair 

and orderly administration of justice. 

Moreover, the Federal courts are increasingly using cameras for 

many purposes other than broadcasting court proceedings to the 

public. Judge O’Scannlain talked about the Ninth Circuit’s internal 

videotaping system. The trial court in the Moussaoui prosecution 

authorized an audio-visual feed to a nearby overflow courtroom, 

and in response to the change of venue in the Oklahoma City 

bombing trial, Congress authorized closed-circuit televising of trials 

23

to crime victims where the trial is moved more than 350 miles and 

out of State. 

Last, there is the overwhelmingly positive record of camera coverage in the State courts. All 50 States allow at least some camera 

coverage of judicial proceedings. The best evidence that these rules 

work is that States have continued to operate under them, in many 

cases for decades. California continued its practice of televising 

State court proceedings even after the O.J. Simpson trial left some 

to question that policy. And just last week, the Florida Supreme 

Court unanimously rejected efforts to limit its rules allowing camera coverage of court proceedings throughout that State’s court system. 

To sum up, permitting Federal court proceedings to be televised 

will dramatically enhance the public’s exercise of its right of access 

to judicial proceedings. Congressional action will open the door’s of 

the Nation’s Federal court system to millions of Americans who are 

otherwise unable as a practical matter to view these proceedings. 

[The prepared statement of Mr. Berlin appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Berlin. 

Our next witness is the distinguished Chief Executive Officer of 

C–SPAN, and has been since C–SPAN was founded in 1979. He 

has had a regular on-air presence with his ‘‘Booknotes’’ up until 

last year and continues to have an on-air presence, as I can personally testify to, having been interviewed by Mr. Lamb as recently as 

August of this year. 

Prior to being a co-founder of C–SPAN, he worked as a freelance 

reporter for UPI radio, a Senate press secretary and a White House 

telecommunications policy staffer. In 1974, Mr. Lamb began publishing a bi-weekly newsletter called ‘‘The Media Report’’ and was 

Washington bureau chief for Cablevision magazine. A graduate of 

Purdue University, he majored in speech, where he received his 

bachelor’s degree. 

Just a little anticipatory on the testimony, C–SPAN covers Senate hearings with regularity and I, for one, hear an enormous 

amount of comment about it. People talk about C–SPAN with attentiveness only parallel to professional sports as to what this individual has observed. 

The next few minutes are yours, Mr. Lamb. 

Senator LEAHY. Mr. Chairman, before he starts, I know how 

much people watch this and actually watch Mr. Lamb because I 

was walking through an airport once and somebody came up and 

said, Mr. Lamb, how long have you been wearing glasses? I said, 

no, no, he is a lot younger and he doesn’t have to wear glasses. 

STATEMENT OF BRIAN P. LAMB, CHAIRMAN AND CHIEF 

EXECUTIVE OFFICER, C–SPAN NETWORKS, WASHINGTON, D.C. 

Mr. LAMB. Senator Leahy, they do the same thing to me often 

in airports—Senator Leahy, can I have your autograph? And, you 

know, I have to disappoint them and tell them I am not you. I have 

gotten that, by the way, on Senator McCain and Senator Glenn, 

and I can go down the list of the number of people that I am 

thought to be. 

24

I was in a classroom a couple of weeks ago, some 16-year-old juniors, talking about C–SPAN and what we do in government and 

civics. One of the students put her hand up and asked me—and I 

don’t remember why because it is an odd question—she said where 

do they put the jury in the Supreme Court room? And it struck me, 

as Professor Irons was talking about the educational value of all 

of this being one of the more important reasons why we are even 

doing this. 

We have a commitment to make here this morning, and we have 

done it before, and that is basically if the Supreme Court will ever 

allow its oral arguments on television, we will carry all of them 

from start to finish. We will find a place to put them all. 

Judge O’Scannlain was talking about members of the Ninth Circuit often want gavel to gavel. I personally am not in favor of enforcing gavel to gavel. I think the news media plays an enormously 

important role in interpreting, and I often find it fascinating because you can’t really find out what the Supreme Court members 

think about television. They don’t meet the public very often. As 

the Chief Justice says, they have an open mind and you never can 

really find out if they have ever voted on it or not. 

But I often thought it was odd because they will allow a member 

of the print press to come in and sit in the press area, or a television reporter to sit in the press area, walk outside, stand in front 

of a camera and interpret everything that went on in the courtroom. But giving us a chance to see how it really happens seems 

to be something that they can’t agree to. 

We are interested in finding a place to carry every argument; 

there are only 80. If you look at the statistics about the Supreme 

Court, there are only 50 seats in the Court—there are 300 altogether, but only 50 where just an ordinary citizen who comes to 

this town who wants to watch an entire oral argument can sit and 

watch. So you have to get in line and you have to take your 

chances. 

There are 12 seats set aside for people to sit for 3 minutes, and 

that hardly does much for you other than being able to see what 

the Court looks like. The rest of the seats are determined by either 

who is before the Court in an oral argument or where the Justices 

want to fill those seats with people that they know. 

So this is just like it was with the Senate in 1986 and the House 

in 1979—an extension of the gallery, an opportunity to see something that is usually an hour in length. And that particular event 

isn’t going to determine how they vote. They go behind closed doors 

for that, and that is fine with us. 

I would be glad to answer any questions, and you have our commitment that we will carry all of these oral arguments if we are 

allowed to. 

[The prepared statement of Mr. Lamb appears as a submission 

for the record.] 

Chairman SPECTER. Well, thank you very much, Mr. Lamb. We 

will have some questions for you in a few minutes after we hear 

from Mr. Schleiff and Ms. Cochran. 

Mr. Henry Schleiff is Chairman and CEO of Court TV Networks. 

Before taking on that position, he was active in a number of key 

posts in the television industry, including Executive Vice President 

25

for Studios USA, executive producer at Viacom, Senior Vice President for Viacom, and had been Senior Vice President for HBO. 

He began his career as a law clerk to Federal Judge Gurfein of 

the Southern District of New York. He has a bachelor’s degree cum 

laude from Penn and a doctorate in law from the University of 

Pennsylvania Law School, where he was an editor of the law review. 

Thank you for joining us, Mr. Schleiff, and we look forward to 

your testimony. 

STATEMENT OF HENRY S. SCHLEIFF, CHAIRMAN AND CHIEF 

EXECUTIVE OFFICER, COURTROOM TELEVISION NETWORK, 

LLC, NEW YORK, NEW YORK 

Mr. SCHLEIFF. Thank you very much, Chairman Specter, Ranking Member Leahy and Senator Sessions. On behalf of our Nation’s 

only television network dedicated to providing a window on the 

American system of justice, I am delighted and honored to testify 

before your Committee which is considering legislation that would 

provide our American citizens, both litigants and viewers, with the 

benefits of televising the proceedings of our Nation’s Federal 

courts. 

This Committee, in particular, is well aware of the fact that our 

trials and courtroom functions are open to the public, and therefore 

to the press. Indeed, our Founding Fathers themselves well understood the importance and need for this openness. It is not by accident that they built a system of justice on really four great pillars—an independent judiciary, the right to trial by jury, rights of 

due process for defendants, and a court system which would be 

open to the public where, as Justice Oliver Wendell Holmes well 

said, quote, ‘‘Every citizen should be able to satisfy himself with his 

own eyes.’’

I do believe that all citizens today, not just the print press or 

those very few who can fit into a courtroom, should be able to 

watch their judicial system in action, and therefore that the few 

lingering concerns about electronic coverage or why it should be denied the equal access accorded print coverage are increasingly specious in this the 21st century. 

Indeed, there can be no reasonable argument with the fact that 

advances in technology such as a smaller and unobtrusive camera 

merely expand the experience of being in the courtroom to the 

greater community, thereby making public trials truly public, as 

was intended by the Founders. 

Certainly, our system of jurisprudence, and especially our constitutional history of providing public trials is an essential element 

of our democracy, and not only of our democracy but of freedom. 

Just as the United States today represents a beacon of freedom, we 

should also allow that light to shine on the example that our own 

courtrooms provide. Our system is not perfect, but it is one of 

which we can and should be proud, especially in our ongoing efforts 

to preserve justice and freedom around the world. 

The importance to our own citizens of allowing cameras in the 

courtroom is really three-fold. One, it enhances public scrutiny of 

the judicial system which helps assure the fairness of court proceedings—a concern of Senator Sessions and one which we all 

26

share. This, in turn, serves to further promote public confidence in 

our third branch of Government. And, three, it does increase our 

citizens’ knowledge about how this branch actually functions. 

Because television is the principal means through which most 

people get their news, it only follows that the same vehicle be employed as a tool to inform and to educate the electorate in this way. 

Justice Louis Brandeis said it far more succinctly—sunshine is the 

best disinfectant. We agree, and we vigorously support the proposed legislation which would open courtrooms to cameras and indeed let the sunshine in. 

Certainly, camera coverage of Government proceedings is nothing 

new in the United States. Both Houses of Congress have already 

opened their chambers to television cameras. This legislation would 

then merely provide the third branch of our Federal Government 

to be given the opportunity to take a similar step. 

Of course, in the proposed legislation which Court TV has long 

supported, trial judges are also to be given the discretion in their 

courtrooms to determine whether to permit a camera in a particular trial, which is a most important and practical safeguard. 

Today, there is certainly growing consensus in the United States 

that having cameras serves the public interest. Some 43 States permit cameras in their trial courts. Since 1991, Court TV has covered 

more than 900 U.S. trials and legal proceedings, providing more 

than 30,000 hours of courtroom coverage. Moreover, in our 15 years 

of such coverage, no judgment has ever been overturned because a 

camera was in the courtroom. 

On the contrary, a myriad of studies over the past two decades 

tracking the impact of cameras has indicated that they do not disrupt or otherwise interfere with the proceedings. If anything, cameras can help keep newspaper coverage, or for that matter sound 

bites, whether we read them in the papers or hear them on the 

local news, in context and thus provide the least sensational and 

most unfiltered form of coverage. For this proposition, I will merely 

cite Senator Schumer’s eloquent analysis of the Amadou Diallo 

trial. 

Finally, I should note that some justices of the Supreme Court 

have over the years claimed that allowing cameras in their courtroom would cause them to lose some degree of their personal anonymity or perhaps even lessen the Court’s moral authority. However, I would submit to you that where no witnesses or other parties are involved, just lawyers arguing to other lawyers, albeit lawyers dressed in robes, about issues which may fundamentally affect 

our daily lives, be it affirmative action, personal choice or the like, 

the potential loss of anonymity would seem to be a fair price to 

pay. 

Chairman SPECTER. Mr. Schleiff, could you summarize the balance of your testimony, please? 

Mr. SCHLEIFF. Yes. I would say only in conclusion that we do 

think that such testimony to be seen at the Supreme Court level 

would do nothing but actually further the dignity with which that 

Court is properly held. I would say, finally, that we do think that 

the American public deserves truly to see the judicial system in action at all levels and to have Federal courtrooms open to camera 

coverage. 

27

[The prepared statement of Mr. Schleiff appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Schleiff. 

Our next and final witness on this panel is Ms. Barbara Cochran, 

President of the Radio-Television News Directors Association. She 

has a very distinguished career in 28 years significantly in Washington, D.C., Vice President and Bureau Chief for CBS News, executive producer of NBC’s ‘‘Meet the Press,’’ Vice President of News 

for National Public Radio, managing editor of the Washington Star. 

She has a bachelor’s degree from Swarthmore and a master’s degree from the Columbia University Graduate School of Journalism. 

Thank you for joining us, Ms. Cochran, and we look forward to 

your testimony. 

STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIO–TELEVISION NEWS DIRECTORS ASSOCIATION, WASHINGTON, 

D.C. 

Ms. COCHRAN. Thank you very much, Mr. Chairman, Senator 

Leahy and Senator Sessions, for inviting me to appear today on behalf of the Radio-Television News Directors Association and the 

3,000 television and radio journalists who are its members. 

RTNDA supports the Sunshine in the Courtroom Act and we welcome Chairman Specter’s legislation to open the Supreme Court to 

television coverage. We believe both bills serve the important public policy goal of instilling trust in the Federal judiciary by allowing 

Americans to witness for themselves what transpires within the 

court system. 

It is simply not right that Americans form their opinions about 

how our judicial system functions based on the latest episode of 

‘‘Judge Judy’’ or ‘‘CSI.’’ Nor does it make sense that the nominees 

for the Supreme Court are widely seen in televised hearings conducted by this Committee, only to disappear from public view the 

moment they are sworn in as justices. 

RTNDA’s members are the people who have demonstrated that 

television and radio coverage works at the State and local level, 

and they can make it work on the Federal level. The interests of 

our citizens are not fully served in this day and age by opening 

Federal courtrooms to a limited number of observers. 

By using today’s technology, citizens can see and hear for themselves what occurs inside the courtroom. Technological advances 

have minimized the potential for disruption to judicial proceedings. 

Cameras available today are small, unobtrusive and designed to 

operate without additional light. Moreover, the electronic media 

can be required to pool their coverage, cutting down on the equipment and personnel in the courtroom. 

The presence of cameras in many State courtrooms is routine 

and well-accepted. All 50 States, as we have heard already, now 

permit some manner of audio-visual coverage of court proceedings. 

RTNDA members have covered hundreds, if not thousands of State 

proceedings across the country without incident and with complete 

respect for the integrity of the judicial process. To the best of our 

knowledge, there has not been a single case since 1981 where the 

presence of a courtroom camera has resulted in a verdict being 

28

overturned or where a camera was found to have any effect whatsoever on the ultimate result. 

State studies show that reporting on court proceedings both by 

broadcast and newspaper outlets is more accurate and comprehensive when cameras are present. Unfortunately, the ban on cameras 

in Federal proceedings means the public sees what takes place on 

the courthouse steps, not what transpires where it matters most, 

inside the courtroom. In fact, because of the Federal ban, American 

citizens have been deprived of the benefits of firsthand coverage of 

significant issues such as whether the Government can take possession of a person’s private property and transfer it to developers 

to encourage economic development, whether executing juveniles 

constitutes cruel and unusual punishment, and whether the term 

‘‘under God’’ in the Pledge of Allegiance is unconstitutional. 

In contrast, just last month people throughout the world were 

able to turn on their television sets to witness the opening of the 

trial of Saddam Hussein. Iraqi officials apparently understood how 

critically important it is to make this process public to the widest 

possible audience. 

During the 2000 Presidential election dispute, RTNDA fought 

hard for televised coverage of the arguments before the Supreme 

Court and we were gratified when Chief Justice Rehnquist made 

the historic decision to release audio tapes at the conclusion of the 

argument. We were also very pleased to hear our new Chief Justice 

express to this Committee his openness to cameras in the Supreme 

Court. The release of audio tapes by the Supreme Court has educated the public and caused no harm. What is needed now is consistent and complete audio-visual coverage. 

Federal courts have not on their own motion taken steps to permit electronic coverage of their proceedings. Therefore, RTNDA respectfully submits that the time has come for Congress to legislate. 

This proposed legislation has the potential to illuminate our Federal courtrooms, demystify an often intimidating legal system and 

provide an appropriate level of public scrutiny. It is time to provide 

unlimited seating to the workings of justice everywhere in the 

United States. 

Thank you, Mr. Chairman, and I ask that some supplementary 

material be submitted along with my written statement. 

[The prepared statement of Ms. Cochran appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Ms. Cochran. We will be glad to 

have the supplementary material and put it in the record. 

We now go to the five-minute rounds for members. 

Professor Irons, do you think it is an appropriate matter for the 

Congress to act legislatively to open up the Supreme Court to television coverage? 

Mr. IRONS. Yes, I do, Senator Specter. 

Chairman SPECTER. Do you have any doubt as to the constitutionality of such action? 

Mr. IRONS. No. As you pointed out in your opening statement, 

Congress exercises considerable oversight, direction of the Federal 

courts, the composition, the procedures, et cetera. I think this falls 

within their purview. 

29

But one thing I would like to note, since Ms. Cochran just mentioned the audiotaping of the Bush v. Gore arguments, is the response to Chief Justice Rehnquist to that experience. He was talking with Fred Graham afterwards. They were at a party together 

and Fred quoted him as saying Rehnquist said he was very pleased 

with the reception that the playing of the Court’s audio tapes had 

gotten. He said he watched it on television and he thought it 

worked well, the way they put up the pictures that identified the 

justices and the lawyers who were speaking. He thought that the 

coverage communicated to the public what was happening in an extremely important case and he was pleased. 

So my point is that the next step beyond that—since the pictures 

were put up, anonymity, of course, disappears the minute those 

pictures are up—would be best served—

Chairman SPECTER. I am sorry to interrupt, Professor Irons, but 

we have a lot of ground to cover. 

Mr. IRONS. Yes. 

Chairman SPECTER. Let me move to Mr. Lamb. Mr. Lamb, would 

C–SPAN be in a position to cover the full televising of the Supreme 

Court? Some of the justices have raised objections about snippets 

here and there. Would there be anything to lead C–SPAN to do 

other than total coverage, just as you do now for the Senate and 

the House of Representatives? 

Mr. LAMB. No. It would be exactly as we do—like this hearing 

today, the whole hearing will be on C–SPAN. It would be the same 

thing with every oral argument. 

Chairman SPECTER. What information do you have as to the ratings for C–SPAN? How many people watch C–SPAN? 

Mr. LAMB. We don’t take ratings. We do surveys from time to 

time to find if there is anybody out there watching. And it is really 

interesting because we are the only network like it and we have 

no idea on a quarter-hour basis who is watching. 

We have been able to identify that out of a country of almost 300 

million now, about 10 percent of the society is interested on a daily 

basis in the kinds of things that you are doing and what we are 

covering. They come to us all the time to see if there is something 

there of interest to them. There are another 3 in 10 people who are 

interested when things get a lot of national attention and they will 

come to us. Then there are 6 in 10 people that never watch. But 

it would make sense to you if you just look at the voting numbers 

that only about half the people vote in a Presidential election. So 

I suspect that most people that don’t vote won’t watch what we do. 

Chairman SPECTER. You now have C–SPAN3, where you make 

selections as to what is going to be shown, and some very wise 

judgments from what I have seen. For example, you covered our 

hearing yesterday on Saudi Arabia. 

Senator LEAHY. A brilliant decision. 

Chairman SPECTER. I have an instinct that C–SPAN3 gets more 

viewing than 1, which has the House, and 2, which has the Senate. 

Any comment? 

Mr. LAMB. I don’t know. C–SPAN3 is not in nearly as many 

homes as 1 and 2, and it is on the digital tier—technical language—which means that people have to go after it and have to 

find it. But I think as times goes by, as the whole television world 

30

is going to change, people will have the same access to C–SPAN3 

as they do to the other two networks. 

Chairman SPECTER. I have a question for the other panel members which is a big one based on the testimony of Judge DuBois, 

who was concerned about how television would impact at a trial 

and the statistics which Senator Sessions cited about jurors being 

less willing to serve. I thought Judge DuBois made a very telling 

point about witnesses being nervous being televised, and that 

might impact on jury evaluation. 

So I would like to ask the four of you, because my time is going 

to expire in just a few seconds, how you respond to the concerns 

which Judge DuBois and Senator Sessions raised as to the ability 

to guarantee a fair trial if it is televised. I will start with you, Ms. 

Bergman. 

Ms. BERGMAN. Yes, Senator Specter. I think our proposal is designed to address that, and that is the consent of both parties, both 

the defense counsel—and I address only criminal cases—and the 

Government would be required before televising of the trial would 

be permitted, because those are the people who know the case the 

best. They know the witnesses, they know the evidence, they know 

the issues that may arise. By giving those parties the opportunity 

to give consent or to not give consent, they are in the best position 

to guarantee that the trials are fair, and they can take into account 

those concerns about jurors, the concerns about the witnesses, and 

the concerns about the impact on the defendant as well. 

Chairman SPECTER. Mr. Berlin. 

Mr. BERLIN. Thank you, Senator. I think that the experience of 

the State courts that have trial coverage with cameras which is 

now a very broad experience, in some cases lasting decades, demonstrates that these concerns are not to be completely overlooked, 

but can be easily managed. 

The bill that is currently before the Committee which affords 

trial judges discretion to handle this has built into it protections on 

this issue. In particular, if a judge is exercising discretion, the 

judge—and I would submit with no disrespect to Ms. Bergman that 

the judge is actually in the best position to balance all of the interests that are before them in a court; that sometimes parties have 

a particular interest that may or may not be actually consistent 

with what is the appropriate to do, and that that overwhelmingly 

record really demonstrates that this is possible to do without interfering with the fair and impartial administration of justice. 

When criminal defendants and other parties have challenged on 

appeal the presence of cameras, there is a very strong record of 

courts saying that they have not, in the manner that they have 

been used, interfered with the operation of the trial court. And 

based on that experience, I think those concerns may be a bit overstated. 

Chairman SPECTER. Mr. Schleiff. 

Mr. SCHLEIFF. Yes, I agree. I think the most recent New York 

study actually spoke to that very point, and I quote, ‘‘Witness intimidation is neither borne out by the record nor sufficiently strong 

to warrant barring cameras from the courtroom across the board.’’ 

I think it is exactly the judge’s discretion which has to be used and 

I think which is appropriately provided for by this legislation. 

31

Chairman SPECTER. Ms. Cochran. 

Ms. COCHRAN. Yes. I agree that the important thing about this 

bill is that it gives the discretion to the judge, who is in the best 

position to make the decision about whether cameras should be admitted or not. I also would refer to the State experience. Some 

States have been allowing cameras into trials for as much as 20 

years and there have not been the problems that are feared. 

Chairman SPECTER. Thank you. 

Professor Irons, my time has expired, so I don’t have time to ask 

you a question now, but I interrupted you. Keep that thought in 

mind because I am going to come back to you. 

Mr. IRONS. OK. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

I just want to make absolutely sure I understand, Professor, your 

answer to Senator Specter because he was asking a question I was 

concerned about. You see no problem with the constitutionality? 

Mr. IRONS. No, I don’t, Senator Leahy. 

Senator LEAHY. I don’t either, but I just wanted to get that on 

the record. 

Ms. Bergman, am I correct that some in the defense bar are for 

the idea of the cameras and some are opposed? 

Ms. BERGMAN. There is a diversity of opinion depending upon 

what court we are talking about. Generally, for appellate argument 

or Supreme Court argument, the defense bar—at least our board 

of directors didn’t have any major opposition to that at all. Our 

concern is with the impact on jurors, witnesses, defendants at the 

time of trial. 

Senator LEAHY. That also requires some sense on the part of the 

trial judge not to allow it to turn into a circus. I mean, a trial judge 

can easily, for example, protect the identity of jurors. I mean, you 

can easily set it up in such a way that jurors’ faces will not be 

shown, or any reaction of jurors during a trial. Is that not correct? 

Ms. BERGMAN. Senator Leahy, there are steps that can be taken 

to try to provide some safeguards to protect the identity of jurors, 

but that does not address the concerns about witnesses who will 

refuse to come forward, who will refuse to testify. It does not address the concern of the impact on witnesses when they testify and 

how it may affect their demeanor in the courtroom and how they 

present their testimony. 

And it doesn’t deal with the issues of the very intimate, private 

types of information that if people think it is going to be televised 

nationally they are not going to want to testify. Or in some cases 

you will have situations with a defendant who will say I don’t want 

that presented because I don’t want that broadcast, and so it is 

going to have an impact that cannot be evaluated merely by protecting identities of jurors. 

Senator LEAHY. We could discuss it further. Having defended 

cases and having prosecuted cases, I still come down on allowing 

the public to know. 

I might ask Mr. Lamb, as far as keeping down the intrusiveness, 

we were halfway through this hearing before I realized there is a 

robot camera here in front of me going back and forth. That is relatively easy to do, is it not, just from a technical point of view to 

32

cut down on the intrusiveness of cameras, which doesn’t go to Ms. 

Bergman’s question, of course, of having yourself seen when you 

are testifying? But at least as far as conducting a trial, you can 

lower the intrusiveness of cameras. 

Mr. LAMB. I think Henry Schleiff would be better at—he has 

done a lot more courtrooms than we have. But when we are talking 

about the Supreme Court, they undoubtedly, if they ever get to television in the Court, would want to operate their own system just 

like the Senate and the House do. And you can basically hide the 

cameras, make it very easy, and people who go before the Court 

won’t even know there are cameras in the room. 

Senator LEAHY. Justice Scalia recently noted on C–SPAN that he 

wasn’t concerned about gavel-to-gavel coverage of oral arguments, 

but was concerned that cameras take these 15-second out-takes 

that can distort rather than inform the public. Isn’t this really a 

question of whether the press acts in a responsible way? 

I remember during the Michael Jackson trial, every night I was 

so glad to see that genocide in Darfur had obviously ended because 

the national press didn’t bother to cover that anymore. They had 

this one molestation case out in California. 

Isn’t that a question for the media and their own responsibility? 

Mr. LAMB. As I said earlier, the justices have a different view of 

the electronic press compared to the writing press. I just don’t understand how you can delineate between the two, but they do. Justice Scalia has a very unusual view of what television ought to do. 

He likes the idea of gavel-to-gavel, doesn’t like the snippets, and 

even when he goes out to speak, he will often say if there are television cameras in the room, I won’t speak. 

We had a little bit of openness earlier this year for about three 

sessions, but it has been a tough go. We have had public comments 

about all this and have great disagreement with him. I just think 

you can’t delineate between the two. The First Amendment applies 

to everybody. 

Senator LEAHY. As Ms. Cochran stated earlier, you get this great 

view of justices during our hearings, as we will with the latest 

nominee in January, but then the marble walls close in. 

Isn’t it true, Ms. Cochran, that there are a lot of examples where 

coverage has worked very well? For example, I was one of the ones 

who urged the Attorney General to make coverage available for the 

families in the Oklahoma City trial because the trial was appropriately moved and a change of venue. But the families who wanted to watch the trial weren’t able to pick up and go, too. 

Wouldn’t that be an example of how all sense of justice for the 

victims and everybody else was served? 

Ms. COCHRAN. Yes. I mean, the easiest way to provide access to 

the widest number of people is through bringing a camera into 

court, and that is an excellent example. The families were able to 

see what was taking place in the courtroom and it didn’t appear 

to have any of the intimidating effects. 

Our members work with judges all the time on the ground rules 

for coverage. They won’t show jurors. If there is a witness whose 

testimony needs to be taken in privacy, that is something that the 

judge can order, and so on. So all of these things can be worked 

out. But I think the important thing to remember is that trials 

33

were designed by our Founding Fathers to be public, and so concerns about embarrassment and that kind of thing—these trials 

are public anyway and the presence of a camera is not going to 

make a significant difference. 

Also, with your indulgence, I would like to address the snippets 

issue, if I may. 

Senator LEAHY. Go ahead. 

Ms. COCHRAN. We prefer to call them sound bites or excerpts. 

The proceedings are going to be covered by the press anyway. 

Newspaper reporters are going to take selected quotes. Television 

reporting is going to use selected quotes. And if there are cameras 

present, then the quotes that are used will be the actual words as 

they were delivered by the people delivering them rather than having it be a mediated, second-hand account of what was said. So it 

really enhances the accuracy of the reporting rather than taking 

away from it. 

Senator LEAHY. Thank you, Mr. Chairman. I think these are valuable hearings. I thank the panel. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Sessions.

Senator SESSIONS. Ms. Bergman, I think you are alone in this 

group. 

Ms. BERGMAN. I feel alone, sir. 

Senator SESSIONS. A good defense counsel is used to that sometimes. 

Ms. BERGMAN. I am. 

Senator SESSIONS. Under the legislation as you read it, the 

Grassley bill, do the parties themselves have any ability to object? 

Ms. BERGMAN. My understanding is that it is a decision that the 

judge has the discretion to make, and I would assume the parties 

would have an opportunity to be heard on it, but ultimately would 

have no right to object to keep the cameras from actually coming 

in. 

And it raises another concern, Senator, which is that in that 

whole process, if the parties have grave concerns about the impact 

this is going to have, it is going to require hearings before the 

judge to present this evidence, to raise this issue, to potentially disclose defense theories that counsel would prefer not to be disclosing 

at that stage. 

It raises the possibility of increased litigation and taking, quite 

frankly, time away from the trial lawyers’ preparation and work on 

the trial rather than focusing on this peripheral issue. That was a 

concern we had in the State capital prosecution of Terry Nichols, 

and luckily we were able to have a professor from Kansas who 

came in to litigate that issue for us because it ended up being a 

writ all the way up to the Oklahoma Supreme Court and it took 

a lot of time and energy that could have been better spent in other 

ways. 

Senator SESSIONS. And if a defendant in a civil or criminal case, 

or even a plaintiff is threatened, let’s say, that we are going to call 

witness such-and-such and that witness is going to say horrible 

things about you if you go to trial and you challenge us and you 

force us to go to trial, do you think it is a quantitative difference 

34

that that might be videotaped and then might be on the evening 

news as compared to maybe being reported in the newspaper? 

Ms. BERGMAN. Absolutely, I think it makes a tremendous difference when it is broadcast with a camera in the courtroom. Putting it on the evening news is qualitatively different in terms of the 

nature of the impact of that, and I think it impacts in several 

ways. One is the fear that a witness will be called to say certain 

things. The other is the aspect of I don’t want to put someone 

through testifying and being televised and having to talk about 

those things. 

I have been involved in capital cases where there were defendants who did not want very painful information presented by relatives, friends, family members. And it was an extreme effort to get 

them to agree to do that, and then if they thought it was going to 

be televised nationally, I know it would have made a tremendous 

difference. 

Senator SESSIONS. And is it your experience, as it has been mine 

as a prosecutor for quite a number of years and a defense attorney 

on occasion, that some of the key things you have to do is just 

spending time holding the witnesses’ hands? They are just terrified. 

Ms. BERGMAN. Absolutely. 

Senator SESSIONS. And if they are told they are going to be on 

television, maybe national television, do you think it adds to the 

terror and concern that they face? 

Ms. BERGMAN. It would just magnify it astronomically. 

Senator SESSIONS. You have said that parties have the right to 

object. Does that include the prosecutor? 

Ms. BERGMAN. Yes, sir. 

Senator SESSIONS. That is good. 

Thank you, Mr. Chairman. I would just say this has been an excellent panel that has raised some very important issues. 

I think there is a remnant, Mr. Lamb, out there that keeps up 

with America. I call them a patriotic remnant that know more 

what goes on here than we do. We have got this Committee just 

down to you and me, Mr. Chairman, and here we are. We are sitting here, but some people are watching every word of this, maybe 

more than the Senate, and they are forming opinions with less 

stress and pressure on them than we have and I think it is 

healthy. I really do believe that. 

But as a person who has tried a lot of cases, I am inclined to 

think that the judges may be correct in their overall perception 

that justice would not be enhanced in the trial court, but we will 

continue to discuss it. 

Thank you. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

Professor Irons, you were in the midst of commenting actually 

beyond the scope of my question, which is why I wanted to move 

on before, but let’s hear what you have to say. 

Mr. IRONS. Well, what I was trying to get across, Senator Specter, was simply that we have, and have had for 50 years now access to the words that are spoken in the Supreme Court. And it is 

a very small, and I think, as pointed out very aptly, now, because 

of technology, unobtrusive process to add faces to those words. 

35

I remember last year when I was attending the Supreme Court 

oral arguments in the Pledge of Allegiance case, sitting right behind Dr. Newdow in the bar section of the Court, I couldn’t imagine 

a more educational experience than being able, particularly for students, but for the general public as well, to see those arguments. 

They were dramatic on both sides. And I don’t think it would have 

detracted from the decorum of the Court or any of its proceedings 

to be able to witness those kinds of arguments. 

So I think that my own experience in talking with students at 

every level, from fourth grade all the way through high school, 

playing them excerpts of these arguments, trying to explain what 

was going on in the Court, would be enhanced immeasurably—and 

I am simply talking now about the appellate level of argument, but 

would be enhanced immeasurably by being able to see those proceedings as well as just listen to them. 

Chairman SPECTER. You testified in your opening statement that 

it was Chief Justice Earl Warren who began the practice of recording the Supreme Court arguments? 

Mr. IRONS. That is correct. 

Chairman SPECTER. Was there any contemporaneous statement 

made or any statement made later by Chief Justice Warren as to 

why he did that, what his thinking was? 

Mr. IRONS. Yes. As a matter of fact, Mr. Chairman, in the accession file at the National Archives—these arguments have been 

moved from the Archives building downtown out to Suitland, Maryland, but in the accession file—and I am probably the only person 

who went through that file after there was an effort by the Supreme Court to limit my access to the tapes. 

A statement by Chief Justice Warren was sent to the Archives 

along with the first batch of the tapes saying that he wanted them 

open to the public. It wasn’t until 1986 that restrictions were put 

on access by Chief Justice Burger, and those restrictions remained 

in place for 7 years until these tapes were released and the Court 

decided, I think, very wisely, particularly in view of the publicity 

that their effort to restrict them had produced, to lift the restrictions again. 

So now, as a matter of fact, you can go into the Supreme Court 

bookstore just down the block and purchase CD-ROMs called ‘‘The 

Supreme Court’s Greatest Hits,’’ which have the arguments in 62 

cases, the full arguments. These, of course, are edited and narrated 

for classroom use. It is hard to keep students’ attention during an 

entire hour of argument. 

I think my basic point really is that I can’t see any detriment to 

the Supreme Court or to the U.S. courts of appeals in having the 

pictures added to the words that are already available to the public. 

Chairman SPECTER. Do you think Chief Justice Warren would 

have been wise to have had audio recordings of the Warren Commission proceedings made available to the public? 

Mr. IRONS. I think so. As I said, Chief Justice Warren recognized—and, of course, he came from public office and he was very 

used to his words being recorded and reported in the press and it 

didn’t intimidate him at all. But I think what he recognized was 

that having presided over the second round of arguments in Brown

36

v. Board of Education—and I searched high and low in the Archives hoping that they would be there somewhere—but that that 

is an experience that should be recorded and preserved for the public. 

Chairman SPECTER. It was difficult to get Chief Justice Warren 

to agree to print the transcripts of the Warren deliberations covering 26 volumes and 17,000 pages. The staffers had to go to the 

Congressional members who were used to printing large volumes 

of materials in the Congressional Record which weren’t too salient 

or pithy, and that was done. 

Mr. Schleiff, what about ratings for Court TV? Mr. Lamb doesn’t 

rate C–SPAN. Do you rate Court TV? 

Mr. SCHLEIFF. Yes, we do. 

Chairman SPECTER. And how are your ratings? 

Mr. SCHLEIFF. They are good these days, sir. But in fairness, 

most of our ratings or focus on our ratings come from the proverbial prime time in the evenings from eight to eleven. While we do 

have ratings during the day of our hearings and our coverage of 

proceedings, they are important to the overall brand, if you will, of 

the network, but it is not where we derive any principal portion of 

our revenues or anything else. But they are indispensably important to what Court TV obviously, given the name, stands for. 

And, yes, it is a core audience that watches it. It is an audience 

that is very devoted, actually, to the process. 

Chairman SPECTER. How many hours a day do you televise? 

Mr. SCHLEIFF. The entire day, pretty much nine right through 

when most of the East Coast courthouses close, until five o’clock. 

Chairman SPECTER. And how about overnight? 

Mr. SCHLEIFF. We will repeat sometimes a portion, depending 

upon what the case is, and some of it on the weekends. But overnight we go into something else which is called our more entertaining or seriously entertaining mode. 

Chairman SPECTER. Mr. Lamb, you do interview Supreme Court 

justices from time to time. What has C–SPAN’s experience been on 

that? 

Mr. LAMB. Well, the most interesting experience was with Chief 

Justice Rehnquist, who over a period of about 15 years let us sit 

down with him four times. And it was always odd to me that he 

would be so open personally and when he would go out to speak 

at his circuit or he would give a speech, he would allow our cameras in; he never refused that. But when it came to inside that 

courtroom, he would just shut it down. 

Several years ago, we would take our cameras into the press 

room and set up and do live programs in there. All of a sudden, 

1 day he sent the word down ‘‘no more.’’ It is really hard to know 

what the thinking is inside that conference room when they make 

some of these decisions and they vote on them. 

There is really only one justice out of the nine that are there now 

that really has not been open, and that is Justice Souter, to anything. We have done lots of programs with these justices and kids 

live coming out of the East Conference Room in the Supreme 

Court. We have actually had on the air over since we have been 

cataloging this, since 1987, 700 different events involving Supreme 

37

Court justices. So, really, the closer you get to that courtroom, the 

more they want to shut it down and don’t want to open it up. 

Chairman SPECTER. So on those events, you have televised all 

members of the Court, except for Justice David Souter? 

Mr. LAMB. And Justice Scalia has been very uninterested in television cameras, the two of them. But all the rest of them—you can 

go into our files and find tape. We have it in our archives. I mean, 

if you want to see what these justices look like and what they 

sound like, after we have done all the hearings that you have been 

involved in, you can go to our archives and still find them to this 

day. 

Chairman SPECTER. Well, you say Justice Scalia has been uninterested in television? 

Mr. LAMB. Yes, he has. He opened three events this year and 

that is the first time since he has been on the Court that he has 

allowed our cameras in. If he sees a camera in his giving a 

speech—and he gives a lot of them—he will just say either take the 

camera out or I am not going to speak. 

Chairman SPECTER. Does anybody choose alternative B? 

Mr. LAMB. You know, interestingly enough, let me just take a 

minute to tell you what happens, and it is a disappointment. 

Chairman SPECTER. You can take your time. My colleagues have 

all gone. 

Mr. LAMB. The disappointment is this, that the venues where he 

speaks, often universities, often connected with law schools, frankly 

will cave. They would rather have him there instead of upholding 

the principle of openness. One of the best examples of this was the 

City Club of Cleveland, which a couple of years ago gave him the 

Citadel of the Freedom of Speech Award. Justice Scalia went to 

Cleveland to accept the award. We cover the City Club of Cleveland 

all the time. We were told we could not cover this time the Freedom of Speech Award given to Justice Scalia. 

You know, once they have up their mind on the Court, it is hard 

to change it and we have not been successful. 

Chairman SPECTER. Well, perhaps he is modulating a bit. Perhaps he has a little different point of view. 

I think that we really need to get a public reaction to televising 

the Supreme Court of the United States. My instinct is the public 

reaction is going to be very positive. The public does not know what 

has happened to Government in the United States. The Court has 

taken over and rules with very much an iron hand, and very much 

an inexplicable hand. 

When we had the hearings for Chief Justice Roberts, it provided 

an opportunity to discuss in some detail what the Court has been 

doing. And when we analyzed a case called United States v. Morrison which involved the Supreme Court declaring part of the Act 

unconstitutional protecting women against violence, we were able 

to publicize that the Court, in a five-to-four decision, found as it did 

because they disagreed with the Congress’s, quote, ‘‘method of reasoning,’’ close quote. 

Up until that decision, Commerce Clause questions had been decided on whether there was a rational basis for the Congressional 

judgment based upon the numerous hearings which Congress 

holds. The four-person dissent said that there was a mountain of 

38

evidence, but Chief Justice Rehnquist disagreed with our method 

of reasoning, which I found, and said it at the hearings, highly insulting. 

Then they upheld parts of the Americans With Disabilities Act 

on access for a paraplegic five to four and denied coverage of the 

Americans With Disabilities Act on employment. Justice Scalia denounced the standard as a flabby test, he called it, designed to 

have the Court be the task master of the Congress to see that we 

had done our homework. And they made the decision based upon 

a test called congruence and proportionality which was invented in 

1997 in a case called Boerne on the Religious Restoration Act. 

Judge Alito is going to be asked, as Chief Justice Roberts was, to 

comment about that standard. 

But I think Americans would be flabbergasted to hear that the 

Court devises some test on proportionality and congruence, and expects the Congress of the United States to know what the standards are. And I think it would put some legitimate pressure on the 

Court to come down with decisions, if not understood by C–SPAN’s 

audience, at least understood by the Judiciary Committee. So we 

are going to continue to push it and it is a question of when, in 

my judgment, not a question of it, and the sooner the better. 

Senator Feingold could not with us today. Without objection, his 

statement will be made a part of the record. 

We thank you all very much for coming. That concludes our 

hearing. 

[Whereupon, at 11:44 a.m., the Committee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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