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S. HRG. 112–584 

ACCESS TO THE COURT: TELEVISING THE 

SUPREME COURT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE 

OVERSIGHT AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

DECEMBER 6, 2011 

Serial No. J–112–55 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

AMY KLOBUCHAR, Minnesota, Chairman 

PATRICK J. LEAHY, Vermont 

HERB KOHL, Wisconsin 

SHELDON WHITEHOUSE, Rhode Island 

CHRISTOPHER A. COONS, Delaware 

JEFF SESSIONS, Alabama 

CHUCK GRASSLEY, Iowa 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

PAIGE HERWIG, Democratic Chief Counsel/Staff Director 

DANIELLE CUTRONA, Republican Acting Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois, prepared statement ...................................................................................................................... 4 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 48 

letter .................................................................................................................. 50 

prepared statement .......................................................................................... 61 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota ................... 1 

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

statement .............................................................................................................. 65 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

Cady, Hon. Mark, Chief Justice, Iowa Supreme Court, Des Monines, Iowa ...... 10 

Goldstein, Tom, Partner, Goldstein & Russell, P.C., Washington, DC ............... 8 

Mahoney, Maureen, of Counsel, Latham & Watkins LLP, Washington, DC ..... 13 

Scirica, Hon. J. Anthony, Chief Judge U.S. Court of Appeals for the Third 

Circuit, Philadelphia, Pennsylvania ................................................................... 11 

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

and Attorney at Law, Philadelphia, Pennsylvania ............................................ 7 

QUESTIONS AND ANSWERS 

Responses of Mark Cady to questions submitted by Senator Grassley .............. 35 

Responses of Thomas Goldstein to questions submitted by Senator Grassley ... 37 

Responses of Maureen Mahoney to questions submitted by Senator Grassley .. 38 

SUBMISSIONS FOR THE RECORD 

Cady, Hon. Mark, Chief Justice, Iowa Supreme Court, Des Monines, Iowa, 

statement .............................................................................................................. 40 

Gazette, November 23, 2011, article ...................................................................... 52 

Goldstein, Tom, Partner, Goldstein & Russell, P.C., Washington, DC, statement ...................................................................................................................... 53 

Kerrey, Bob, Chairman, Global Scholar, Empowering the World to Learn, 

New York, New York, December 2, 2011, letter ................................................ 63 

Mahoney, Maureen, of Counsel, Latham & Watkins LLP, Washington, DC, 

statement .............................................................................................................. 67 

National Law Journal, November 14, 2011, article .............................................. 79 

New York Times, October 2, 2011, article ............................................................. 82 

Scirica, Hon. J. Anthony, Chief Judge U.S. Court of Appeals for the Third 

Circuit, Philadelphia, Pennsylvania, statement ................................................ 84 

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

and Attorney at Law, Philadelphia, Pennsylvania, statement ......................... 92 

Washington Post, November 25, 2011, article ....................................................... 97 

(1) 

ACCESS TO THE COURT: TELEVISING THE 

SUPREME COURT 

TUESDAY, DECEMBER 6, 2011 

U.S. SENATE, 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Amy 

Klobuchar, Chairman of the Subcommittee, presiding. 

Present: Senators Klobuchar, Whitehouse, Durbin, Blumenthal, 

Sessions, Grassley, and Lee. 

OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. 

SENATOR FROM THE STATE OF MINNESOTA 

Chairman KLOBUCHAR. Good morning. I am pleased to call this 

hearing of the Senate Judiciary Subcommittee on Administrative 

Oversight and the Courts to order. We have an extremely distinguished panel of witnesses here today. We especially do want to 

welcome back Senator Specter to this Committee where he has 

spent many, many hours. I will introduce the panel after the members make their opening statements. 

Today we will be discussing the proceedings of the United States 

Supreme Court and the bipartisan Durbin-Grassley bill that will 

televise the proceedings. There have been hearings and proposals 

in the past on televising all levels of the Federal courts, and although I have supported those proposals, I do recognize as a former 

prosecutor that there are more complicated factors when you are 

dealing with trials in the lower courts and that there should be discretion in those matters. But my focus today, our focus today, will 

be on the Supreme Court, and I would like to begin with a quote 

from the Court itself. 

In the Richmond Newspaper decision, which upheld the press 

and public’s right of access to the courts under the First Amendment, Justice William Brennan observed: ‘‘Availability of a trial 

transcript is no substitute for a public presence at the trial itself. 

As any experienced appellate judge can attest, the cold record is a 

very imperfect reproduction of events that transpire in the courtroom.’’ I could not agree more. And while Justice Brennan was 

talking about actual attendance in a courtroom, I think his argument is just as persuasive with respect to allowing cameras in the 

courtroom. 
2 

Although the Supreme Court is open to all Americans in theory, 

the reality is that public access is significantly restricted. There are 

only a few hundred seats available, some of which are reserved for 

specific individuals. That means visitors often get just 3 minutes 

of observation time before they have to give up their seats to the 

next person in line. 

Those friends of mine that have attended when their spouses or 

colleagues were arguing before the Supreme Court say it is an 

amazing experience, and we do not in any way want to lessen the 

experience. We would just like to expand that experience to other 

people. 

More importantly, over 99 percent of Americans do not live in 

Washington, DC, and, thus, their opportunity to visit the Court is 

limited, not only by the number of chairs in the room but by geography. And it should not be a once-in-a-lifetime experience to be 

able to see the Court in action. 

The impact of the Court’s rulings has significant and often immediate consequences for real people. For proof, we do not need to 

look much further than landmark cases like Brown v. Board of 

Education, Loving v. Virginia, Miranda v. Arizona. In recent years, the Supreme Court has made some strides toward increasing transparency. Chief Justice Roberts enacted a new 

policy making audio recordings of oral arguments available on the 

Court’s website, though not usually on the same day. But before 

coming to the Senate, you should know, in my time as the county 

attorney—and I speak from personal experience—I said that transcripts and audio recordings just are not the same as actually 

watching judges question lawyers live, as actually seeing the exchange of ideas and the expressions of the participants. 

That is why I find there to be a compelling need for regular televised coverage of the Supreme Court’s oral arguments and decisions. The public has a right to see how the Court functions and 

how it reaches its rulings. It is the same argument for televising 

speeches on the Senate floor, press conferences by the President, or 

for that matter hearings like this one. 

Democracy must be open. Members of the public, especially those 

who do not have the time or means to travel to Washington, DC, 

should be able to see and hear the debate and analysis on the great 

legal issues of the day or, frankly, on any issues that come before 

the United States Supreme Court. And, of course, even if you live 

across the street from the Court, it is not a reasonable proposition 

to attend on any sort of a regular basis. 

So, in reality, public access to the Court is very limited, and I 

believe that greater access would be an important tool to increase 

public understanding of our system of law and demonstrate the 

judges’ integrity and impartiality in engaging with lawyers from 

both sides. 

I have always felt that it was a shame that the overwhelming 

majority of Americans only get to see the Justices during their confirmation hearings in the Senate. I recognize that there are legitimate and deeply held concerns about televising Court proceedings 

or making them available on the Internet, and I would note that 

in reality those two mechanisms are becoming more and more 

intertwined and indistinguishable. 
3 

We thought it was important to have several witnesses here 

today that would take the opposite side on this bill. That is why 

we are very glad that we have such a distinguished panel of people 

of differing viewpoints. 

But as I mentioned earlier, I think the more difficult concerns to 

address are at the trial court level, in part due to the presence of 

witnesses, jurors, and criminal defendants. Those issues are not 

present in the United States Supreme Court. 

As we will hear from one of our witnesses, the Supreme Court 

in Iowa has successfully adopted cameras in the courtroom, as have 

other State courts. Through the experiences of the State courts, two 

Federal circuit courts, and a pilot program running in 14 district 

courts around the country, we have had a chance to examine in 

real life the questions that opponents of cameras have raised, such 

as potential issues of due process; and we have seen that in some 

cases the concerns have not materialized as feared, and in other 

cases there have been ways to address the concerns. 

In terms of due process, it is important to note that the Senate 

legislation championed by Senators Durbin and Grassley—I am a 

cosponsor as well as, I know, Senator Cornyn and several others— 

specifically provides that if a majority of Justices believe that any 

party’s due process rights would be violated, the case would not be 

filmed. I think that is important. 

But for all the reasons I have stated, I believe the Court should 

no longer remain isolated from the average Americans who bear 

the real-world consequences of its decisions. I am confident that the 

Justices of our Supreme Court are capable of ensuring the dignity 

and the decorum of their courtroom and that the presence of cameras will not interfere with the fair and orderly administration of 

justice but, rather, it will make it stronger. 

With that, I will turn to Ranking Member Sessions for his remarks. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. I thank the Chair, and you always 

do such a good job at these hearings and do allow a fair and open 

discussion, and I look forward to today’s hearing. 

It is good to see Senator Specter back. He is teaching a course. 

He is writing the fourth book and practicing some law and is still 

active in the great issues of our time. He is one of the Senators I 

have most admired in my time in the Senate. 

This is what I am thinking about the matter, and I do not claim 

to have it all correct. The power of the Court, its role, its legitimacy, its moral authority, arises from the fact that it is removed 

from the hustle and bustle of everyday life, its passions, its 

ideologies, its politics. It is a place justice is done under the Constitution and laws of the United States. The Court seeks to discover the legal issue in the case. It then endeavors to decide that 

legal issue based on objective and long-established rules of interpretation and adjudication. 

It is a complicated process at times. It is most certainly not a 

forum for policy debate, and that is why judges where robes: to 

make clear their objectivity, their neutrality. The moral authority 
4 

of a court I believe arises from its production of an objective judgment. 

The only thing that is important is the judgment, the order. That 

decision speaks. It is what is important. It speaks for itself. It 

speaks for those who rendered it, and their visage, their personality, or lack of it, is not what a court is about. A court is about 

its decision. 

They say we want to see that process in action, but I am not sure 

how you see a judgment being formed. To the extent that cameras 

in the courtroom undermine the sense of objectivity, they cause the 

courts to be perceived more as a policy or a political entity, the 

courts’ moral authority has perhaps slightly been reduced. 

To the extent that our Justices worry about that, I think we 

should give them deference, whether or not it is constitutionally— 

whether or not Congress can constitutionally direct a court to have 

cameras or not, it seems to me that we should take very seriously 

their views about it and respect it. It is their domain. They do not 

tell us how to run our offices here. 

So I think that there are real concerns about the issues that are 

before us. I know Senator Grassley and you, Madam Chairwoman, 

and Senator Specter have strong views and have advocated those 

for years. But I remember when I became United States Attorney, 

Judge Dan Thomas, who was appointed by Harry S. Truman, gave 

me some advice about the good office I was about to enter. He said, 

‘‘If it ain’t broke, don’t fix it.’’ So I am pretty pleased, really, with 

the effectiveness of the great court system in America, and I think 

we should be cautious about making significant changes. 

Thank you. 

Chairman KLOBUCHAR. Thank you very much. 

Senator Grassley. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Madam Chairman, for holding 

this very important hearing. Before I speak, I wanted to announce 

to my colleagues and to the witnesses that I am going to have to 

at 10:45 go over to the floor for a nominee that is up. 

Over 10 years ago, Senator Schumer and I introduced the Sunshine in the Courtroom Act to grant Federal judges the authority 

to allow cameras. Since that time, this bill has been brought before 

the Committee many times, and each time it has been scrutinized, 

improved upon, and reported out of Committee with broad bipartisan support. 

Today’s hearing focuses upon a companion issue: whether or not 

the Supreme Court should permit cameras in its courtroom. Just 

yesterday Senator Durbin and I introduced what we call the ‘‘Cameras in the Courtroom Act of 2011,’’ a bill which would require the 

Supreme Court to broadcast and televise. 

Like the Sunshine in the Courtroom Act, this bill has also been 

brought before the Committee on several occasions. It, too, was reported out favorably with bipartisan support and was championed 

by one of our witnesses today, my friend Senator Arlen Specter, 

who, as I told him privately, I am glad to see back in action again. 
5 

My interests in expanding the people’s access to the Supreme 

Court increased 11 years ago when the Supreme Court decided to 

hear arguments in the Florida recount case in the 2000 Presidential election. Senator Schumer and I urged the Supreme Court 

to open the arguments to live broadcast. In response, the Supreme 

Court took the then unprecedented step of releasing an audio recording of the arguments shortly after they occurred. It was a sign 

of progress that gave the entire country the opportunity to experience what so few get to, and that is, the Supreme Court at work. 

Just last year, the Supreme Court began releasing audio recordings of its proceedings at the end of each week. This is another step 

in the right direction, and I applaud the Court for transparency 

and great access. But it is not enough. I believe that the nature of 

our Government and the fundamental principles upon which it was 

built require even more. 

Abraham Lincoln said, ‘‘Ours is government of the people, by the 

people, and for the people.’’ Our Constitution divides power through 

checks and balances. But most importantly, it makes the Government accountable to the people. The best way that we can ensure 

the Federal Government is accountable to the people is to create 

transparency, openness, and access. 

The vast majority of people do not believe that they have adequate access to the Supreme Court. We had a poll released last 

year; 62 percent of Americans believe that they hear too little 

about the workings of the Supreme Court. Two-thirds of Americans 

want to know more. What could be a better source of the workings 

of the Supreme Court than the Supreme Court itself? 

In 1947, the Supreme Court stated, ‘‘What transpires in the 

courtroom is public property.’’ Well, if it is public property, then it 

belongs to the whole public, not just the 200 people who can fit inside the public gallery. 

With today’s technology, there is no reason why arguments could 

not be broadcast in an easy, unobtrusive, and respectful manner 

that would preserve the dignity of the Supreme Court’s work and 

grant access to millions of Americans wishing to know more. 

My State of Iowa knows something about this. For over 30 years, 

it has permitted the broadcast of its trial and appellate courts. In 

fact, I am pleased to welcome, as you all know, our Supreme Court 

Chief Justice Mark Cady today. He has come to share with this 

Committee his unique perspective of presiding over a court that 

broadcasts its proceedings. He is a strong proponent of transparency and continues to pioneer new ways to give the public 

greater access to the court system. 

Before we begin, I would ask for three things to be included in 

the record: 

First, a letter I wrote to Chief Justice Roberts asking for the 

health care law case to be televised. I would like to put that in the 

record. 

And the second thing and third thing to put in the record would 

be editorial opinions, one written by the second largest newspaper 

in Iowa, the Cedar Rapids Gazette, an editorial board stating its 

support of legislation; and the other, the editorial board of the 

Washington Post. Both express the belief that the Supreme Court 

must permit its proceedings to be broadcast. It is not often that 
6 

America’s heartland and the Washington establishment agree on 

too much, and so that brings a unique perspective to this issue. 

Thank you very much. 

Chairman KLOBUCHAR. Thank you. Those will be included in the 

record. 

[The information appears as a submission for the record.] 

Chairman KLOBUCHAR. I know Senator Durbin is going to join us 

at some point here and has a few words to say about his legislation, but I think we will start with our witnesses first, and we will 

ask that you stand so you can take the oath. 

Do you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. SPECTER. I do. 

Mr. GOLDSTEIN. I do. 

Justice CADY. I do. 

Judge SCIRICA. I do. 

Ms. MAHONEY. I do. 

Chairman KLOBUCHAR. Thank you very much. I am going to 

mention and go through and introduce each of you, and then we 

will have you each give your remarks for 5 minutes. 

First, as has been well acknowledged, Senator Specter is here 

with us. He served in this chamber for 30 years, the longest-serving Senator in his State’s history. As Chairman of the Judiciary 

Committee, he was a tireless advocate for televising Supreme 

Court proceedings. He did not have to come back at this point. He 

has a lot of things going on, as Senator Sessions pointed out, but 

we were just honored that you would join us today and make, I 

think, your first official return to the Senate. So thank you so 

much for being here, Senator Specter. 

We also will hear from Tom Goldstein. Mr. Goldstein is a founding partner of Goldstein & Russell, an appellate firm specializing 

in Supreme Court litigation. Mr. Goldstein has argued before the 

Supreme Court 24 times—but who is counting? He also teaches Supreme Court litigation at Harvard and Stanford law schools and is 

the publisher of the popular SCOTUS blog, always the place to look 

for insights and rumors—true rumors, and things like that. But 

you cannot put that on your blog. 

Next we have Chief Justice Mark Cady of the Iowa State Supreme Court. Justice Cady served as an assistant county attorney, 

a district court judge, and as chief judge of the Iowa Court of Appeals before his appointment to the State Supreme Court in 1998. 

Next is Judge Anthony Scirica of the Third Circuit Court of Appeals, who has previously served as chief judge of that circuit and 

as a district court judge. Prior to his appointment to the Federal 

bench, Judge Scirica served as an assistant district attorney and 

State representative in Pennsylvania. 

Finally, Maureen Mahoney, who is a graduate of the University 

of Chicago Law School. She founded the Supreme Court and appellate practice in the Washington, DC, office of Latham & Watkins, 

where she works today, and from 1991 to 1993, served as a United 

States Deputy Solicitor General. 

We thank you all for joining us, and we will begin our testimony 

with Senator Specter. 
7 

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

AT LAW, PHILADELPHIA, PENNSYLVANIA 

Mr. SPECTER. Madam Chair, Ranking Member Sessions, thank 

you for scheduling the hearing on this very important subject, and 

I am pleased to be back in this room where I have spent many interesting hours on the other side of the dais. 

I believe that it is vital that the public really understands what 

the Supreme Court does, and in our electronic age, the information 

comes from television. 

The Supreme Court decided in 1980 in a case captioned Richmond Newspapers v. Virginia that the public had a right to know 

what goes on in Court. It applied not only to the print media but 

to the electronic media. 

The Supreme Court decides all of the important cutting issues of 

the day. The Court decided who would be President in Bush v. 

Gore by one vote. The Court decides who lives through the abortion 

rights, who dies on the death penalty, and every subject in between. 

Not only does the Court affect the daily lives of all Americans, 

it has a tremendous impact upon the separation of powers, and I 

believe that Congressional authority has been very seriously eroded 

by what the Court has done on the decisions which they have decided and on the decisions on the cases which they have not decided. 

The authority of the Congress under the Commerce Clause was 

unchallenged for 60 years and then in Lopez and Morrison cut 

back. Chief Justice Rehnquist said in Morrison that the legislation 

was unconstitutional because of the Congressional ‘‘method of reasoning.’’ I have often wondered what transformation occurs when 

the nominees leave this room, walk across the green, and are 

sworn into the Supreme Court. 

The Court is very ideologically driven at the moment, and I think 

the public needs to understand that. The case of the Affordable 

Care Act is coming up for Supreme Court review, and that is a case 

which touches every American, and it ought to be accessible to the 

public. 

The chamber holds only 250 people, and when the American people were polled on the subject, 63 percent said they thought the Supreme Court ought to be televised. When the other 37 percent 

found out that the people could stay only for 3 minutes and the 

chamber was limited, the number rose to 80 percent. 

The highest court of Great Britain is televised. The highest court 

of Canada is televised. Most of the State Supreme Courts are televised. 

When the nominees appear before the Committee on confirmation, they speak about the favorable opinion of television, or at 

least an open mind. Somehow that position, as well as many others, gets a 180-degree reversal when they get to the Court. 

The issues which are coming up in the Affordable Care Act really 

ought to be subject to really close public scrutiny. I believe that the 

legitimacy of the Court itself is at stake for the people to understand what the Court does. 
8 

There have been no good reasons advanced why not to televise 

the Supreme Court. There was an article which appeared in the 

National Law Journal by Tony Mauro. He attributes, as he puts it, 

‘‘the defiant stance of the Supreme Court’’ is their view that they 

are entitled to be characterized as under exceptionalism. Justice 

Kennedy said, ‘‘We operate on a different timeline, a different chronology, we speak a different grammar.’’ 

Well, that is not true in a democracy. I think Senator Sessions 

has it right when he says they consider it their domain. Well, it 

is not. It is the public’s domain and it ought to be accessible to the 

public. 

Thank you. 

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

for the record.] 

Chairman KLOBUCHAR. Thank you very much, Senator Specter. 

Mr. Goldstein. 

STATEMENT OF TOM GOLDSTEIN, PARTNER, GOLDSTEIN & 

RUSSELL, P.C., WASHINGTON, DC 

Mr. GOLDSTEIN. Thank you, Madam Chair, other members of the 

Committee. It is quite an honor to be here with four panelists, all 

of whom have been mentioned seriously, as has the Chair, as a potential nominee to the Supreme Court. That is not a problem I am 

ever going to have. 

My perspective is as someone who does argue regularly before 

the Court and also, as you mentioned, operates a website that will 

have roughly 10 million visits this year relating to the Court where 

people come to find information about the Court. 

I appreciate the fact that you have taken the time to hold this 

hearing on an issue that everyone agrees is fantastically important. 

Just to follow up on Senator Specter’s point about the health care 

case, one can only imagine that if the oral arguments in that case 

and the eventual decision were televised, then at least 50 million 

people would watch that in this country. It is so important, the 

contentious decision to pass that legislation in this body, the obvious serious questions about the statute’s constitutionality, but only 

100 or 200 people will be able to be in the room for those oral arguments. And we are a visual culture. People watch television. That 

is how they get a lot of their news. And so it would make a big 

difference to have television there. 

You have my written testimony, and I will not repeat it, so I will 

just make three points: 

First, that televising proceedings would be good for the Supreme 

Court, not bad for the Supreme Court; 

Second, that I think you can pass a law constitutionally that requires the Justices to do this, but that I would not. 

I think that televising would be good for the Supreme Court because experience shows that sunshine increases public confidence. 

It does not decrease it. The Justices are tremendously serious people doing the public’s work. The oral arguments are not scintillating. They are sometimes not very interesting. As someone who 

argues in front of the Court, I can say that. But they are incredibly 

important. The power to strike down a law passed by the people’s 

representatives is the most serious power that exists under the 
9 

community, in my opinion. And for the public to understand what 

is going on and to see the serious questions and the serious answers I think would make the public believe in the Justices and the 

good work that they are doing even more than it does now. And 

we are at a time when there is a flagging confidence in our democracy, and doing things to increase that confidence would be a good 

thing. 

Second, can you force them to do it? Nobody knows. There has 

never been a case like this, and it is always quite a challenge to 

pass a law that would require the Supreme Court to do something 

and then invite the Supreme Court to decide whether you can do 

it. The Justices would end up deciding that case in all likelihood. 

In my opinion, though, the answer is probably yes. These are public proceedings. You are not talking about televising the private deliberations. The Justices have already decided to let the public in. 

There is a significant First Amendment interest in the public being 

able to see what is going on. It is an important part of our governmental structure. And the very fact that it is part of the deliberations—the questions, the answers—suggests to me that there is a 

significant interest in having the proceedings be seen. 

I would, however, if you were going to do it, attach findings to 

the legislation that explains why it is that you have found that it 

does not disrupt the Court’s proceedings, would not present a security risk, and the like. The legislation standing alone invites the 

Court—and a district court that would hear the case in the first instance—to reach its own judgments about that. So I think in hearings like this you would need to find facts that support the legislation. 

But, third, I just would not do this. I happen to agree with Senator Sessions. We should begin by recognizing that it is really easy 

to criticize the Court. It does not have a PR operation. It does not 

respond. And the Justices deserve praise. They are practically the 

only people in Washington trying not to get on television. They are 

just trying to do their jobs. And they have taken significant strides. 

They do not just say that they care about public access. They are 

doing things. They not only publish their opinions, they have created a website that is accessible in real time. They publish the 

transcripts of the arguments the same day. They now publish the 

audio in the same week. And they are headed in this direction on 

their own. And as Senator Sessions has pointed out, they have 

asked for some deference in the process of reaching this conclusions. 

And like other Courts before them, this has always been done, 

I think, pretty much by the judiciary voluntarily rather than the 

legislature telling them to do it. And the trajectory is that it is inevitable that television will be in the Supreme Court, and I would 

not provoke the constitutional controversy of requiring them to do 

it. 

Thank you. 

[The prepared statement of Mr. Goldstein appears as a submission for the record.] 

Chairman KLOBUCHAR. Thank you very much. 

Justice Cady. 
10 

STATEMENT OF HON. MARK CADY, CHIEF JUSTICE, IOWA 

SUPREME COURT, DES MOINES, IOWA 

Justice CADY. Senator Klobuchar, Madam Chairperson, members 

of the Committee, it is my pleasure and my honor to be with you 

this morning to tell you about Iowa’s experience with video court 

proceedings. 

The Iowa Judicial Branch has been a leader in video and audio 

media coverage for courts. For more than 30 years, Iowa courts 

have allowed audio, photographic, and video coverage of our court 

proceedings. 

In 1979, following a thorough study, the Iowa Supreme Court 

adopted rules to allow for expanded media coverage of court proceedings in both trial and appellate courts. These rules are carefully designed to prevent disruption of the court hearings and to 

safeguard the rights of litigants to a fair, impartial trial and appeal; and in summary, Iowa rules provide for the media to file first 

a request to cover a media court coverage trial. That request is 

filed with a media coordinator who then submits it to the court. 

Litigants are then given a right to object to the coverage. The 

media must pool its equipment, and the rules prohibit coverage of 

certain sensitive subjects and segments of a hearing. 

Our rules have worked very well. They limit the number of cameras in the courtroom, require the cameras to be stationary so as 

not to distract from the proceedings, and they ensure that the 

judge always has control of the process. Our judges rarely have 

problems with this expanded media coverage, and journalists who 

cover our courts respect the rules and the rights of litigants. 

The process has worked so well that it has become expected. Expanded media coverage of trials, especially high-profile trials, is a 

matter of routine. Expanded media coverage of appellate hearings 

is less common. I estimate that we might have expanded media 

coverage in perhaps one or two arguments a year. 

But in addition to our procedure for expanded media coverage of 

the courts, the Iowa Supreme Court streams all of its oral arguments online. We also then archive the videos for later viewing. 

Our court began recording its oral arguments and making them 

available online in 2006, and we have continued that practice 

today. 

As you know, the strength of our democracy—indeed, any democracy—requires a well-informed citizenry. This principle holds true 

for each branch of Government. The strength and the effectiveness 

of our court system depends on the confidence in the courts. As 

former Supreme Court Justice Thurgood Marshall said, ‘‘We can 

never forget that the only real source of power that we as judges 

can tap is the respect of the people.’’ That respect obviously depends on how well we do our job of administering justice. But it 

also depends on the public’s understanding of our job and the information the public has about how we are doing our job. 

Our experience in Iowa has shown that media coverage of our 

courts tends to boil down at times to just a few seconds of a video 

of a high-profile trial with a report of the proceedings filtered by 

a reporter. And so what the public gets is simply a snippet of the 

process. Although we would like to allow more coverage of our 

court arguments, we believe the media in Iowa provides a great 
11 

service. Their efforts increase the visibility of our courts and our 

court procedures. 

At the same time, it has become easier for courts to direct them 

to our proceedings through modern information technology. And 

with our online video of court proceedings, more people watch our 

courts, and our experience bears this out. 

I think I want to leave you with simply one anecdote, perhaps 

best described. There has been a strong interest in our online arguments in our court proceedings, and this has been a tremendous 

surprise, and it has revealed an opportunity—an opportunity for 

greater public understanding. And my observation and conclusion 

is this: Cameras expose courts to what they do and what they are— 

a proud institution of justice. The more the public sees our courts 

operate, the more they will like and the more they will respect our 

court system. And this was vividly shown to me a few months ago 

when the Iowa Supreme Court heard arguments in a community 

outside our seat of government in Des Moines. The case involved 

a criminal violation of an ordinance prohibiting local Mennonite 

farmers from driving their steel-wheeled tractors on hard surfaced 

roads. The issue in the case was whether the ordinance violated 

the First Amendment. Our arguments in this community drew 

about 350 people from the area. Afterwards, at a reception, the father of the young Mennonite boy who was the subject of the prosecution patiently waited to shake my hand. And when he did, he 

looked me in the eye and he said this: ‘‘Having seen your court 

work, it seems like a pretty honest thing.’’ Our courts are an ‘‘honest thing,’’ and cameras can help show it to the public. 

I would now like to briefly pause so we could watch a short excerpt from one of our court hearings. 

Thank you. 

[The prepared statement of Justice Cady appears as a submission for the record.] 

Chairman KLOBUCHAR. Well, certainly, since this is about cameras in the courtroom, we will allow the showing of that. Thank 

you. 

[Videotape played.] 

Justice CADY. Thank you. 

Chairman KLOBUCHAR. Well, we want to know what happened in 

the case, but we will ask you later. 

OK. Next, Judge Scirica. 

STATEMENT OF HON. J. ANTHONY SCIRICA, CHIEF JUDGE, 

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA 

Judge SCIRICA. Chairman Klobuchar, Ranking Member Sessions, 

and distinguished members of this Committee. Good morning, and 

thank you for inviting me here to discuss these proposals for televising the oral arguments of the Supreme Court. I do not speak for 

the Court, but I am pleased to offer my own perspective, which is 

shaped by my service in the judiciary. 

At issue is whether televising oral arguments will affect the integrity of the judicial process. In ways we may not fully comprehend or cannot always anticipate, communication through different media can affect how an institution functions. 
12 

You will hear a broad range of views with thoughtful arguments 

on both sides. Reasonable people disagree about the best course. 

But let me make three general points that I believe merit consideration: transparency, accessibility, and respect among the branches 

that allows each to govern its own deliberations. 

First, transparency. The most important work of the Supreme 

Court, deciding the difficult cases it hears, is transparent. The 

Court explains its decisions in detail. Traditionally this was done 

through the printed word; now it is done through the electronic 

word as well. 

As you know, only the Court’s opinions are binding precedent on 

questions of Federal law. This process of reasoned deliberation confers legitimacy and permits litigants and the public to evaluate for 

themselves the soundness of the Court’s judgment. 

Second, over time the Supreme Court has become more accessible 

and more transparent. It has embraced the Internet to enhance access to its work. Lawyers’ briefs, the Court’s opinions, transcripts 

of oral arguments, audio recordings of oral arguments are all available on the Court’s website free of charge. Its opinions are online 

as soon as the decision is announced. 

Third, each of our three branches of Government is responsible 

for its own deliberations and self-governance. This separation of 

powers underscores the considerable latitude that should be afforded each branch in determining its own internal procedures. Deciding whether to televise oral arguments at the Supreme Court 

goes to the heart of how the Court deliberates and conducts its proceedings. 

Those of us outside the Court all have individual and institutional interests in the decision. But we do not have the responsibility to decide these difficult cases of national importance. The 

Justices do. They are the ones most familiar with the operation of 

the Court. They understand the dynamics and nuances of Supreme 

Court oral arguments and how that exchange affects their deliberations. They can best evaluate whether the introduction of cameras 

might affect the quality and integrity of the dialog with the attorneys and, just as important, the dialog among the Justices. 

There is a common bond between members of the Supreme Court 

and Members of Congress: Each serves as a trustee of the longterm interests of an essential institution in our country. The Court 

has proceeded cautiously in evaluating whether to televise oral arguments. This should give pause when seeking to impose a decision 

on a coordinate branch of Government. 

A Congressional mandate that the Supreme Court televise its 

proceedings is likely to raise a significant constitutional issue. Lawyers and Members of Congress have expressed this possibility. But 

there should be no need to test the constitutional separation of 

powers. There is a compelling reason for caution apart from avoiding a possible constitutional question. 

The co-equal branches of the Federal Government have long respected each branch’s authority and responsibility to govern its 

own internal affairs and deliberations. This history is deeply rooted 

in the American political and constitutional tradition. Congress has 

honored this legacy by guarding judicial independence and self-governance. These long-standing principles of comity among the co-
13 

ordinate branches of government—that is, mutual respect for each 

branch’s essential functions—counsel moderation and deference. 

It is not unreasonable to defer to the Court on how it conducts 

its deliberations and speaks to the American people. The Court 

should be afforded a measure of comity in its own governance to 

decide for itself whether, when, and how cameras should be present 

during its oral arguments. 

Thank you very much, Madam Chair. 

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

Chairman KLOBUCHAR. Thank you very much. 

Ms. Mahoney. 

STATEMENT OF MAUREEN MAHONEY, OF COUNSEL, LATHAM 

& WATKINS LLP, WASHINGTON, DC 

Ms. MAHONEY. Good morning. I want to thank the Chair and 

members of the Committee for giving me the opportunity to testify 

today in opposition of the legislation that has now been proposed. 

I come to this Committee having served 30 years as a Supreme 

Court advocate. I have argued 21 cases before the Court, and I 

have had the privilege of working with the Court and the Judicial 

Conference on the rulemaking process. So I have come to know 

them and respect them. 

A few years ago, Justice Kennedy testified before Congress, and 

he expressed the hope that Congress would accept the Court’s judgment on the issue of televised arguments. I would like to highlight 

four reasons why Congress should respect Justice Kennedy’s request. 

The first is that there is a serious reason to believe that legislation overturning the Supreme Court’s policy on this issue would be 

unconstitutional. I agree with Tom Goldstein that the issue is debatable. It certainly has not been settled. But I think the text of 

the Constitution, the doctrine of separation of powers, and Congress’ historical practices all point in the direction that this legislation would be unconstitutional. It would, after all, be an effort to 

strip the Court of its historic authority to decide how to control proceedings in its own chamber. 

When you look at the text, Article III vests the judicial power of 

the United States in the Supreme Court, not in Congress. Congress 

did not create the Supreme Court. The Constitution did. 

From the earliest days of the Republic, the Supreme Court has 

made clear that the judicial power does include the authority to 

adopt rules necessary to conduct its proceedings and to protect the 

integrity of its decisionmaking processes. Although Congress surely 

has some power to adopt laws that affect the Court, it cannot, as 

the Court says, ‘‘impermissibly intrude on the province of the judiciary,’’ or disregard a ‘‘postulate of Article III’’ that is ‘‘deeply rooted’’ in the law. Those concerns are directly implicated here. It 

would be difficult to describe a statute that strips the Court of its 

deeply rooted power as a mere administrative regulation, especially 

when it is done in the context of a disagreement with the Court 

about how it has come down on this issue. 

History also lends support to this conclusion. From 1789 to the 

present, Congress has always left the Supreme Court free to adopt 
14 

its own rules governing its proceedings without any oversight or 

legislative approval. 

Second, any benefit from the televised proceedings is not great 

enough to warrant a constitutional confrontation, and I think Tom 

Goldstein agrees with me on this issue. I would just say on the 

benefit side, this is not a one-sided debate. As Justice Stevens has 

put it, this is a ‘‘difficult issue.’’ Those are his words. It is easy to 

posit some educational benefits, but it is all about what are the incremental benefits once the public already has full access to the 

audio and the transcripts. And Justice O’Connor, who has been 

very devoted to public education on the judicial branch and the Supreme Court, said that, in her view, televising Supreme Court proceedings ‘‘wouldn’t enhance the knowledge [of the public] that 

much’’ due to the availability of other information, and she notes 

that arguments are ‘‘technical and complicated.’’ 

Third, I think television poses genuine risks to the Court’s decisionmaking processes, and we just need to look at what a few of 

the Justices have said and have told Congress. 

First, let us look at what Justice Souter said. In 1996, he told 

Congress that the case against cameras is ‘‘so strong’’ that ‘‘[t]he 

day you see a camera coming into our courtroom it is going to roll 

over my dead body.’’ And it bears emphasis that Justice Souter 

based this view on his own personal experience when he was sitting as a Justice of the New Hampshire Supreme Court. He said 

that in his experience, television cameras definitely ‘‘affected [his] 

behavior,’’ that ‘‘lawyers were acting up for the camera’’ by ‘‘being 

more dramatic,’’ and that he was ‘‘censoring his own questions.’’ 

Similar concerns have been shared by a large number of Federal 

appellate judges who participated in a pilot project of televising 

oral arguments a number of years ago. 

And let me just run through what the other Justices have said 

on this topic about how it would affect their decisionmaking process because I think it is essential that the Committee be aware of 

this. 

Chief Justice Roberts has said that ‘‘grandstanding’’ may be expected to increase. 

Justice Kennedy has said that television would ‘‘alter the way in 

which we hear our cases, the way in which we talk to counsel, the 

way in which we talk to each other, the way in which we use that 

precious hour.’’ 

Justice Thomas says television would have an ‘‘effect on the way 

the cases are actually argued’’ and ‘‘undermin[es] the manner in 

which we consider the cases.’’ 

Justice Alito said that television would ‘‘change the nature of the 

arguments’’ because the participants’ ‘‘behavior is changed’’ when 

proceedings are televised. 

Justice Breyer sees ‘‘good reasons’’ for television, but he counsels 

caution because there are also ‘‘good reasons against it.’’ 

And Justice Stevens recognized potential benefits but said he ‘‘ultimately came down against it,’’ because it might negatively affect 

the arguments and the behavior of the Justices and lawyers. 

And, finally, I would just like to say that I would like to echo the 

sentiment that the Court is in the best position to assess the im-
15 

pact of electronic media on its proceedings, and it can be trusted 

to continue to give the issues careful consideration. 

As Justice Kennedy has explained, it is the Justices, not Congress, who ‘‘have intimate knowledge of the dynamics and the 

needs’’ of the Court. And when the shoe was on the other foot, the 

Supreme Court refused to second-guess the Senate’s procedures for 

conducting impeachment trials. A Federal judge who was being impeached came to the Court and challenged those procedures, and 

the Supreme Court said that the Senate had authority to determine for itself what procedures would govern. And the same should 

be true here. 

The matter has not been finally decided. The Court, as one of the 

witnesses explained, has actually altered its policies in cases of 

high public interest, as it did in Bush v. Gore, and it now has requests pending before it about the health care cases. There is 

ample time to consider those. 

So, in summary, I would just urge the Subcommittee to stay its 

hand. Justice Kennedy informed Congress that ‘‘we feel very 

strongly that this matter should be left to the courts,’’ and that 

view is entitled to respect under our constitutional system of governance. 

Thank you. 

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

Chairman KLOBUCHAR. Thank you very much, Ms. Mahoney. 

I did want to, before I turn it over for questions here, also quote 

our newest and youngest member of the Court, Justice Elena 

Kagan, who recently said—in fact, was asked at our Supreme 

Court confirmation hearing if she favored televised proceedings. 

She said she did. But she recently said in August, ‘‘If everybody 

could see this, it would make people feel so good about this branch 

of Government and how it is operating.’’ And I actually got that out 

of an article recently in the New York Times by Ken Starr, Judge 

Ken Starr, former Solicitor General. I am going to put that in the 

record as well. 

[The article appears as a submission for the record.] 

Chairman KLOBUCHAR. I also want to add that I spoke with Justice Souter for about half an hour about his views, and I think you 

expressed them well. But I also talked to Ken Starr, who obviously 

had a different view. And I am going to turn it over to two of my 

Republican colleagues who have time commitments, so I am going 

to have them go first here. But I did want to note two things from 

Ken Starr’s editorial in the New York Times where he talks about 

the people that would like to be able to see this. Whether they understand every procedural question or not, Ms. Mahoney, I am not 

sure is relevant because I think they understand a lot of what is 

going on. He points out older Americans affected by health care decisions would like to see an argument. He talks about women or 

other groups affected by important class action cases like the WalMart discrimination case last term. 

So I think we have to remember that while they may not understand every single detail, they understand the bulk of what this is 

about. 
16 

I turn this over to my co-chair, Senator Sessions, and then over 

to Senator Lee, who I know has a time commitment. 

Senator SESSIONS. Thank you very much. 

I do think there is a matter of respect, Ms. Mahoney. I remember, perhaps Senator Specter was part of the little Committee that 

went to Chief Justice Rehnquist during the impeachment proceedings to ask him how the Senate should proceed. And I so vividly remember, he said, ‘‘Well, you are the Senate. You decide how 

to proceed.’’ And he would not give any advice. The idea was to get 

some advice about how the Senate should conduct its business, and 

he said that. 

Judge Scirica, oral argument in the court of appeals is optional. 

To what extent is it traditionally optional in the Supreme Court 

and changing the rules might alter the amount of oral argument 

that occurs? 

Judge SCIRICA. In most of the courts of appeals throughout the 

country, Senator, oral argument is not held in all cases. In cases 

where it is held, eight of the circuits put their oral arguments on 

audio, usually within the same day. Five do not. But some of those 

are presently considering doing so. 

If the Supreme Court were to change its view, obviously it is 

something I think the courts of appeals would take into account. 

But it is worth noting that since the experiment from 1990 to 1994 

in the lower federal courts, only two of the federal courts of appeals 

have allowed videoing oral argument. The Ninth Circuit does it a 

great deal. They do it in all their en banc cases and on a case-bycase basis on other cases. The Second Circuit, the other court of appeals, does it quite infrequently. They have only done it four times 

in the 4 years between 2006 and 2010. 

Senator SESSIONS. One of the things that bothers me a little 

bit—I do not know that it is a defining thing, but in the letter that 

was written, there was a quote about older people might want to 

be watching this. You have, of course, a complete record of what 

happens. It is audio transcribed, and it is typed and produced. But 

I guess my thought is that we do not want to be in a position in 

which courts feel they are pressured by one group or another group 

to render a decision. 

Senator Specter, Justice Kennedy testified a few years ago here, 

in 2007, ‘‘The majority on my Court feel very strongly, however, 

that televising our proceedings would change our collegial dynamic 

and we hope that this respect that separation of powers and balance of checks and balances implies would persuade you to accept 

our judgment in this regard. . .We are judged by what we 

write. . .We think it would change our dynamic. We feel it would 

be unhelpful to us. . .We have come to the conclusion that it will 

alter the way in which we hear our cases, the way in which we talk 

to each other. . .’’ 

I thought that put forth a pretty good statement of the feeling 

on the Court. I think it is a legitimate feeling produced within integrity. How do you feel the Senate should consider overturning 

that and imposing our view of how the courtroom in the judicial 

branch should be conducted? 
17 

Mr. SPECTER. Well, I think the public’s right to know and the 

benefit of an informed citizenry vastly outweigh what you quote 

Justice Kennedy as talking about collegial dynamics. 

Justice White boiled it down in the article that I referred to by 

Tony Mauro, which I would like to have made a part of the record, 

saying that the Court’s view of not televising, ‘‘It’s very selfish, I 

know.’’ 

[The information referred to appears as a submission for the 

record.] 

Mr. SPECTER. I believe that if the Court were televised, there 

would be an understanding and an accountability, and let me be 

very specific. It is hard to get into sufficient detail in the brief time 

allowed. 

The Court came down with a monumental decision in Citizens 

United which allows unlimited anonymous corporate expenditures. 

Yet a book recently published by Professor Larry Lessig of the Harvard Law School called ‘‘Republic, Lost,’’ he goes to a critical part 

of Justice Kennedy’s fifth vote which decided the case in a 5–4 decision and points out that when Justice Kennedy made a conclusion 

that unlimited anonymous corporate expenditures would not affect 

citizens’ participation in the electoral process, he had absolutely no 

factual foundation. 

The Congress, under separation of powers, has the authority to 

find the facts, and then there is need only for a rational relationship between what Congress finds factually and the legislation 

which Congress enacts. 

The Court in Citizens United disregarded, as Justice Stevens 

pointed out, a 100,000-page record and literally yanked the rug out 

from Congress where Congress had relied upon the Austin case in 

enacting McCain-Feingold. Nobody really understands what is happening in these cases, and it is hard to have it conveyed even if 

there is television. But at least that is an enormous start. 

So I would consider the collegial dynamics that Justice Kennedy 

refers to, but I believe it is vastly outweighed by the public interest 

and transparency. As Brandeis said, sunlight is the best disinfectant. 

Senator SESSIONS. Well, I would just say that you express your 

policy view well. It is obvious the Court has a different policy view 

in whether or not we should overturn that is the question before 

us, I suppose. 

Mr. SPECTER. Well, Senator Sessions, I have been battling this 

issue for decades. Three times this full Committee has reported a 

bill out. One of the real sad parts about leaving the Senate was not 

being able to carry the fight forward. But now that Senator Durbin 

has joined the panel, if I may have his attention, he promised to 

carry on the battle in my absence. I am precluded under the ethics 

rules from asking Senator Durbin what he has done, except when 

I testify before the Committee. 

[Laughter.] 

Senator SESSIONS. And before the camera, and you are holding 

him to the promise he gave you. Is that right? 

Mr. SPECTER. You bet. 

Madam Chair, may I just add that I have a commitment to make 

the 12 o’clock train, so I have to excuse myself before it is all over. 
18 

Senator SESSIONS. Thank you very much. 

Chairman KLOBUCHAR. Very good. We will make sure that Senator Durbin has that opportunity so that you can ask him questions, Senator Specter. But we are going over to Senator Lee first. 

Senator LEE. Thank you, Madam Chair. I really appreciate you 

accommodating my time constraints, and I want to thank each of 

our panelists for being here today. 

I come at this issue with a certain internal conflict that I am 

hoping you can help me resolve today, and in many respects you 

have helped me resolve that. The conflict of which I speak stems 

from the fact that I am an unapologetic, open law geek. I started 

attending and watching Supreme Court arguments at the age of 

10. I listen to oyez.com sound recordings of oral arguments from 

the Supreme Court as background music when I am going about 

my work. And on one level there is absolutely nothing that I would 

love more than to watch Supreme Court arguments on television. 

That would be the greatest Christmas gift that I can imagine receiving. 

And, on the other hand, at the same time, I feel that as a coordinate branch of Government the Supreme Court is entitled to a very 

significant degree to determine how it operates, and this does lead 

us to some conflict, but I appreciate the testimony that has been 

given today and the insight that you have provided for us. 

We have here assembled a very distinguished panel. I have seen 

Maureen Mahoney argue before the Supreme Court. I have seen 

Tom Goldstein argue before the Supreme Court. I have not seen 

Senator Specter argue before the Court, but I understand that it 

has happened. And as a law clerk, I saw Judge Scirica preside over 

many appellate arguments. And so it is great to have each of you 

here. 

But I would like to direct my first question toward Ms. Mahoney. 

I would imagine that in the following scenario some heartburn 

would be felt. Imagine that at some future point Congress decided 

that although today most of our proceedings are televised, including most of our Committee processing—at least they can be, if anyone wants to televise them—at some future point that Congress decided that some Committee hearings would not be open to television cameras. That is sometimes the case today. Some of our 

Committee hearings are, in fact, closed to the public. Those are 

rare, but it may be the case that some that, while not closed to the 

public, would no longer be televised. 

In that circumstance suppose further that the courts got involved, that the courts looked at it and we ended up with a decision 

from the Supreme Court of the United States saying, in effect, we 

have examined the Constitution, and we have found emanations 

and penumbras flowing out of various free-standing constitutional 

provisions and concluded that from those emanations and penumbras we can conclude only that it is unconstitutional for the Senate 

not to allow all of its proceedings to be televised, whether Committee or floor or voting or otherwise. 

How would that be distinguishable from us telling the Supreme 

Court that it must open up its oral arguments to television? 

Ms. MAHONEY. Well, it is well settled under the Constitution that 

it is the Supreme Court’s responsibility to say what the law is. Just 
19 

to quote Federalist Paper No. 78, whenever a particular statute 

contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. 

So it is just settled that the Supreme Court gets the last word, 

which is really one of the reasons why I think it would be a mistake for Congress to go down this path because it would create the 

potential for a constitutional confrontation between the branches. 

Senator LEE. And regardless of who gets the last word as a practical matter, as far as—— 

Ms. MAHONEY. Why is it different as a matter of First Amendment? Well, for one thing, this is—you are doing an elective responsibility. You are elected by the people. The Constitution was 

designed to set the judiciary apart and independent. They are not 

elected. The whole notion of life tenure was to preserve their independence and, in fact, to insulate them from popular opinion. That 

is not true with the way that the legislative branch is structured. 

But, again, going back to the Nixon case, impeachment proceedings are public but, nonetheless—the Court said it was up to 

the Senate to decide what procedures it would use for those proceedings and the Court would not second-guess that. They would 

only second-guess it if, in fact, the Constitution required a different 

conclusion. 

Senator LEE. Part of what I understand you to be saying is that, 

regardless of what we can do as a matter of raw political power, 

there is a question of what we should do. 

Ms. MAHONEY. That is certainly the case, but I also think there 

is a serious question about whether you can do it. A very serious 

question. 

Senator LEE. OK. Senator Specter, how do you respond to this 

point about the appropriateness of our telling a coordinate branch 

of Government how to operate? 

Mr. SPECTER. The Congress has the authority to handle administrative matters legislatively. For example, the Congress decides 

what a quorum is on the Court—six. The Congress decides how 

many Justices there will be on the Court. Recall the famous Courtpacking plan. The Congress has the authority to tell the Court 

when it begins its arguments—on the first Monday in October. 

Congress has the authority to tell the Court what cases it should 

hear. And I believe that the Congress has the authority to tell 

them what cases—if they ought to be televised. 

It is true that the Court has the last word, and I believe that is 

the way it should be. The finality of the Court is vital, and the 

independence of the judiciary is vital. That is the backbone of the 

rule of law in our Republic. 

So the Court can come back and say it is a violation of separation 

of powers. I frankly do not think they would because you have very 

strong public opinion in favor of having the Court televised. And 

in the final analysis, the Court does listen to the public, and there 

are very strong arguments. I think, for example, in the 1980 decision that I referred to, there is not equal protection of the law. 

When the newspaper people could come in, the Court complains 

about news clips which were taken out of context. Well, that is 

what you have, a quotation. I think you may have been victimized 

by that some time in the past. But that is a free press. And I be-
20 

lieve that it would really benefit this country to have that kind of 

accountability and that kind of understanding. 

If I may add just one additional thought, the Court has been expanding its authority in a variety of ways. Since Maryland v. 

McCullouch, the rational basis for legislation was the test. In a 

case captioned the City of Boerne in 1997, they came up with a 

new test of what is congruent and proportionate, and nobody knows 

what that means. In the Americans with Disabilities Act within the 

past decade, two cases were decided entirely differently-one Garrett 

v. Georgia involving employment, and one Lane v. Tennessee on accessibility. And Justice Scalia said that that test was a ‘‘flabby 

test,’’ as he put it, to enable the Court to engage in policy decisions. 

And I think the Court does engage in policy decisions, and I think 

the ideological tilt of the Court, both ways—the Warren Court, the 

Rehnquist Court. And I think the public needs to know, and I think 

it is a restraining influence if the public knew. 

And we know that the Court reflects the changing values in a society. Well, the public has to know what the Court is doing in order 

to be able to express those values. 

Senator LEE. Fair enough. Thank you. I see my time has expired. 

Thank you very much, Madam Chair. 

Chairman KLOBUCHAR. Thank you very much, Senator Lee. 

I am going to just ask one quick follow-up here before turning 

it over to my colleagues, and then I will do my questions at the 

end. 

Ms. Mahoney made the argument that it is not constitutional, 

this bill, to require the Supreme Court, with many exceptions for 

due process, to televise. And I wondered, Mr. Goldstein, while you 

are not a fan of having Congress do this, you would rather have 

the Court do it themselves, and I think—how long have you been 

working on this, Senator Specter, trying to get the proceedings televised? How many years? 

Mr. SPECTER. How many years? 

Chairman KLOBUCHAR. Yes. 

Mr. SPECTER. Twenty-five. 

Chairman KLOBUCHAR. Twenty-five years. 

Mr. SPECTER. Give or take five. 

Chairman KLOBUCHAR. Give or take five. So you can see, Mr. 

Goldstein, why hoping that this will just happen gets somewhat 

frustrating. So could you just give the argument for why it is constitutional before I turn it over to my colleagues, building on what 

Senator Specter spoke about? 

Mr. GOLDSTEIN. Sure. It is my pleasure, and thank you for the 

opportunity. As Maureen Mahoney says, Article III of the Constitution vests judicial power in the Supreme Court, which is the only 

Court that the Constitution requires. But as Senator Specter points 

out, there are lots of pieces of the administration of the Supreme 

Court, from things as simple as budgeting to more detailed points, 

like what is a quorum, what the scope of the Court’s jurisdiction 

is, and the like, that this body has a lot to say about under the 

Constitution. And there is no clear line here. 

I do think one thing that would be on the other side of the line 

that clearly would be unconstitutional is Congress could not pass 

a law that says the Justices are having their private deliberations, 
21 

but we are going to put a camera in there because we think sunshine is the best disinfectant. That would really be what is classically a private part of what the Justices are doing. 

To me, the critical point is that these are public proceedings, and 

it seems to me that once the Justices make the threshold decision 

that these are going to be open to the public, absent some compelling reason to believe that it really would be distortive of how oral 

argument works, that is not—what would end up being characterized as whether it is an undue interference in the operation of the 

Court. And given with extraordinary deference to the Justices 

about their view about how this would affect the proceedings, given 

the experience of other courts, it seems to me hard to conclude that 

this would really undermine how the Court is operating. I would 

not go there. As you indicated, I do not think it is a step that is 

necessary. I think that one compelling thing that this body could 

do would be to pass a unanimous resolution urging the Court to do 

it, to give them a sense of what the Senator has pointed to as the 

great public interest in televised proceedings. But with no promises, I think that ultimately the legislation would be upheld. 

Chairman KLOBUCHAR. Very good. So what you are saying is that 

if suddenly the legislation were that the private proceedings be 

made public, that would be a different matter? 

Mr. GOLDSTEIN. Yes. 

Chairman KLOBUCHAR. But when you are dealing with something that is already public and what you are really trying to do 

is expand the room to Iowa and other places. Very good. Thank 

you. 

Senator Blumenthal. 

Senator BLUMENTHAL. I am going to yield to Senator Durbin. 

Chairman KLOBUCHAR. Very good. Senator Durbin. 

Senator DURBIN. Thank you, Senator Blumenthal. 

Senator Specter, it is great to see you again. And I think it is 

unprecedented, but it is the first time a witness has asked a Senator a question, and I believe because of your many years of great 

service in the Senate, you are entitled to that. And the question is: 

What are we doing to pass the bill that we both like so much? We 

are holding a hearing and you came. 

[Laughter.] 

Senator DURBIN. And that is an important development. I thank 

you for being here, Senator Specter. 

Ms. Mahoney, I guess one of the things that troubles me is part 

of your testimony that suggests that the public just cannot understand the complexity of the arguments, the technical aspects that 

are often brought before the Court, and because we cannot ‘‘solve 

the problem of educating young people,’’ we really should not complicate their lives by exposing them to these complex arguments. 

I do not think that that kind of conclusion is in the spirit of what 

we call democracy. I think in the spirit of democracy, educating the 

people and giving them exposure to even the most technical arguments is considered appropriate. When you leave a monarchy, you 

really get down to a level where people who are chosen for public 

office are held to some standard of accountability. So tell me, if we 

allow the public to sit in the Supreme Court and listen without any 

proof that they have college degrees or law degrees, and if we allow 
22 

the press to cover the proceedings without any guarantee that a 

Supreme Court Justice may make certain that the question that is 

posed would look good in tomorrow’s newspaper, what is the difference here? 

Ms. MAHONEY. If I could first say, Senator, that I did not say 

that there was no benefit to the public. This is a more complicated, 

more difficult issue. It is what are the incremental benefits. And 

it was Justice O’Connor who said that arguments would not enhance the knowledge of the public that much, and the reason—— 

Senator DURBIN. But you quote it in your statement. 

Ms. MAHONEY. Yes, I was quoting Justice O’Connor, and I think 

that is important because I think we all know she cares deeply 

about these educational issues. And here the question is: What is 

the incremental benefit? You have to weigh the incremental benefit 

against the cost. 

If there was no risk to the Court’s deliberative process, I would 

agree with you. We should go ahead and televise all the proceedings. Hardly anyone would probably watch. But so what? 

And the other thing is that the audio is available. As Senator Lee 

was saying, he can listen to the entire audio, and does so. 

Senator DURBIN. As released by the Court, but I—— 

Ms. MAHONEY. You can hear every word—— 

Senator DURBIN.—would just say—— 

Ms. MAHONEY.—of every argument, Senator. 

Senator DURBIN. Ms. Mahoney. 

Ms. MAHONEY. Yes. 

Senator DURBIN. The point I am getting to is this—and we live 

a little different life than you do. As I travel around Illinois, I continue to be amazed, and even amused, by the number of people 

who watch C-SPAN night and day. I do not know if these are 

insomniacs or people who are, you know—— 

Ms. MAHONEY. Sure. Right. 

Senator DURBIN. I will not go any further. But whatever their 

motive may be, they not only know who we are and what we are 

saying and what we have just argued on the floor of the U.S. Senate; I will have friends at home—I have one in particular, Joe 

Kelly, a World War II veteran, who says, ‘‘Bernie Sanders looked 

pretty sad this week. Is something wrong? ’’ 

Ms. MAHONEY. Sure. 

Senator DURBIN. Honestly, they will watch closely and carefully 

and draw their own conclusions about the Government that they 

have elected. 

Ms. MAHONEY. Right. 

Senator DURBIN. I think it is a healthy thing. 

Ms. MAHONEY. It can be, and C-SPAN I think sometimes plays 

the audios and they can run pictures of the Justices if they want. 

Senator DURBIN. So why isn’t it healthy that we take this to the 

next logical step? Why are we drawing these boundaries and saying 

when it comes to televising or putting these matters on the Internet, it is somehow a leap too far? 

Ms. MAHONEY. Because we have to ask what is the impact on the 

deliberative process in the Supreme Court, and the people who 

know the answer to that best are the Justices who ask the questions and listen to the answers and observe the behavior of lawyers 
23 

and decide how it influences their own decisionmaking process. If 

they believe as a collegial body that these benefits are substantial 

and that the risks to their process are not significant, they will 

allow television in the courtroom. And that day may come. 

Senator DURBIN. Ms. Mahoney, first, let me correct the record. 

It was Joe Flynn and not Kelly. It was another good Irish name, 

but it was Joe Flynn who raised the question about Bernie Sanders’ disposition. 

But, Senator Specter, as you listen to this, why are we intruding—I am giving you a soft ball here. Why are we intruding into 

the proceedings of the Court and their own decorum in establishing 

a standard that there will be television cameras in the courtroom? 

Mr. SPECTER. Because it is so important for the public to know 

how its Government functions, and because the Supreme Court affects the lives of Americans in such great detail. You cannot do 

much more than elect a President by a single vote, and you cannot 

have a more important decision than health care. And the Citizens 

United case, when exposed to sunlight, just does not make any 

sense. It is based upon an assumption without any facts to back 

it up when you come right down to it. It is illustrated by Professor 

Lessig’s book. It is illustrated by Justice Stevens’ dissent. And the 

Supreme Court does reflect the changing values of a society. 

Senator DURBIN. Well, let me ask you this, Senator: I believe 

that you served in the U.S. Senate before the proceedings on the 

Senate floor were televised, did you not? 

Mr. SPECTER. That is correct. 

Senator DURBIN. And how would you react now to critics who say 

that we are now more theatrical in our performances on the floor 

than before? 

Mr. SPECTER. I would cite the tremendous number of quorum 

calls. A Senator can get the national camera anytime he or she 

wants it, virtually, but people do not do it. And there are no theatrics there. And to the extent that there could be theatrics—and 

there might be some—that is vastly outweighed by the benefit, by 

the benefit of public understanding and having the public see how 

its Government functions. And the Supreme Court is the most powerful part. When they refuse to decide a case like the Terrorist Surveillance Program warrantless wiretaps, contrasted with Congressional authority under the Foreign Intelligence Surveillance Act, 

they take tremendous power away from the Congress and give it 

to the executive branch. People ought to know that. 

And when they decide that Congress cannot legislate to protect 

women against violence because Chief Justice Rehnquist said it is 

our method of reasoning, it really -it does not verge on insulting. 

It is. 

I do not think we are being too assertive if we say to the Supreme Court, ‘‘Televise. And if you want to declare it a violation 

of separation of power, we acknowledge your authority.’’ 

Senator DURBIN. Thank you, Senator Specter. 

Madam Chair, I ask that my statement be placed in the appropriate place in the record. 

Chairman KLOBUCHAR. It will be placed in the record. 

[The prepared statement of Senator Durbin appears as a submission for the record.] 
24 

Chairman KLOBUCHAR. I did want to reiterate what Senator Durbin just said. You think no one is really watching you sometimes? 

I was in a small town in southern Minnesota a few years ago, and 

four older women called me aside after I gave a little talk. And 

they said, ‘‘You know, we tuned in every day to see you preside at 

4 o’clock over the Senate.’’ They are just watching me sitting in the 

chair. ‘‘And we noticed you are not doing it anymore,’’ because they 

changed the time. And they said, ‘‘Are you in some kind of trouble 

in the Senate? ’’ And it just struck me again how regular citizens 

are tuning in, and while I know right now the reputation of Congress has some issues, for good reason, I do not think that means 

we shut them out. And, in fact, I see it as part of the democracy, 

that people are able to watch this and come to their own conclusions about issues. 

So, with that, I turn it over to Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Senator Klobuchar. I tune in 

every time you preside as well, so I just want you to know you have 

a lot of fans out there. 

I have not argued as many cases as you have, Ms. Mahoney and 

Mr. Goldstein. I have done several. And I recognize the dangers 

that the Justices of the Supreme Court see in the possibility of 

grandstanding and theatrics. But I have to tell you, there is no 

more intimidating and challenging experience than to argue before 

the United States Supreme Court. And bar none, I think there are 

constraints built into the forum and the pace and the difficulty of 

questioning that would really preclude—and I have been there, and 

I have had in mind sort of applause lines that I might use. But it 

is impossible, given that forum to responsibly do it. And I would 

suggest that the great fear in the back of every advocate’s mind is 

the possibility of a rebuke from the Court, which is very close to 

happening to any lawyer, especially one in the position of trying to 

use it as a public grandstand, so to speak, from one of the nine Justices, and any nine of them can offer that rebuke. 

So I think that the fear of that happening is greatly overstated 

in the minds of the Justices perhaps because they have not recently been an advocate before the Court, if they have been at all. 

And I come down on the side of permitting televised proceedings, 

obviously depending on how it is done. The example we saw here 

akin to what is done in many State courts I think would be a plausible and prudent way to do it. And, obviously, the State courts 

have gone through this debate. We did in Connecticut at the trial 

level where the potential for grandstanding is much greater in the 

midst of an evidentiary proceeding where waving a piece of evidence before a jury is always a real possibility. 

But all of that said, I want to come to the constitutional question, which I agree is serious. I believe, as you do, Mr. Goldstein, 

without promises, that it would be upheld because I think that it 

is in the nature of a rule of procedure or a rule of infrastructure, 

so to speak. 

With that in mind, let me ask all of you, but beginning with Ms. 

Mahoney, couldn’t the Congress, if it wished, move the Supreme 

Court into a building five times the size of the present one, admitting an audience many times larger than what we have now, in 

fact, maybe even the Civic Center? I do not know what the Civic 
25 

Center in Washington, DC, is called, but we have one in Connecticut which will admit thousands of people. Couldn’t it expand 

the size of the physical audience? And isn’t that very much in the 

same nature as this rule would do? 

Ms. MAHONEY. Well, certainly the Supreme Court cannot build 

its own building—although maybe it could. It could probably get 

the Supreme Court Historical Society to raise money for a building 

for it. But certainly the Congress has the power of the purse and 

for that reason does have control over some things like where the 

Supreme Court will sit. And, yes, I assume that Congress could, in 

fact, build a new building with a bigger chamber. 

I do not think that means they can put the Court in a Coliseum 

if the Court felt that it adversely impacted the integrity of its decisionmaking, and that is really what we are talking about here, is 

how do these Justices assess the impact of television on their deliberative process. 

If I could just speak to this issue of the nature of the power that 

Congress has, certainly they have some. Appropriations is one. The 

power to determine the number of Justices, well, that is because 

while the Constitution creates the Court, the Court is not self-appointing. That power, the power of appointment, is given to the 

President with the consent of the Senate. So as an ancillary matter, it makes sense to say they can come up with the numbers. 

But when the President tried to enlarge the number of Supreme 

Court Justices back in the Court-packing days, when President 

Roosevelt did that, what this Senate did was they refused to go 

along. They defeated the legislation, and this Committee issued a 

report that said it was essential that the judiciary be completely 

independent of both executive and legislative branches. So even the 

powers Congress does have, it has to use in a way that does not 

interfere with independence, and it has never exercised oversight 

responsibility over Supreme Court rules. From 1789 the Court has 

solely had that authority on its own. 

So I think in the textual case for the Congress’ authority in this 

area, it is not really there. I am not saying that I am sure this is 

unconstitutional, but this is a very, very serious question. 

Senator BLUMENTHAL. I disagree. I do not know why it is do serious. If the Court can be moved to a forum much, much larger, if 

the Congress can control, in effect, the kind of record that is made, 

can’t it also, in effect, open the proceedings to the public in a different forum? 

Ms. MAHONEY. If it is doing that in a manner which impacts directly on the Court’s ability to control its own proceedings, then 

there is a very serious question because that is part of the judicial 

power, Senator. 

Senator BLUMENTHAL. And I agree with you that if the Congress 

passed a law that said in the course of these proceedings every Justice has to be televised individually close up and the litigant or the 

lawyer for the litigant should be given permission to move around 

the courtroom and show whatever physical evidence was presented 

at trial, that would change the nature of the proceeding. But simply to leave the proceeding as it is now but open it to larger 

viewership I do not think changes—— 
26 

Ms. MAHONEY. But that just begs the question of who is supposed to decide whether it changes the nature of the proceeding, 

because so far the Justices of the Supreme Court have concluded 

that they think it would, and that is why—they are not being arbitrary. They are not just saying no television for no reason. They 

have a different assessment than you do, Senator, and the whole 

nature of the independence of the judiciary—— 

Senator BLUMENTHAL. But the Supreme Court Justices also believe that the judiciary is underfunded—— 

Ms. MAHONEY. Yes, they do. 

Senator BLUMENTHAL.—so that it is inadequately performing its 

present function. I think that is a much more fundamental separation-of-powers issue—— 

Ms. MAHONEY. It is a very fundamental issue. 

Senator BLUMENTHAL.—than whether or not we put cameras in 

the courtroom. For the United States judiciary to be inadequately 

funded seems to me a much more serious and profound—— 

Ms. MAHONEY. It is a very serious and profound issue, and it is 

one that I think Congress should address and correct. 

Senator BLUMENTHAL. Why is that not also a constitutional issue 

then? 

Ms. MAHONEY. Well, because Congress clearly has the delegated 

authority to establish the budget and to fund appropriations. So its 

authority there is textual in basis. What is its textual authority 

to—— 

Senator BLUMENTHAL. Well, then—— 

Ms. MAHONEY.—impose rules on the Supreme Court—— 

Senator BLUMENTHAL. And I apologize for taking too much time, 

Madam Chairman. Just one last question. 

Why could the Congress as a matter of its appropriations power 

fund cameras in the United States Supreme Court with the mandate that they be installed? 

Ms. MAHONEY. Well, they could have a provision to fund them, 

but the issue of whether they can mandate that they be used intrudes into the core power, judicial power of the Court to decide 

how to conduct its own proceedings. That is the difference. If it is 

all about line drawing—and, Senator, I agree there, it is very difficult to know where to draw the lines, but that is why we need 

to let the Court draw its own line. 

Senator BLUMENTHAL. Thank you very much. 

Thank you, Madam Chairman. 

Chairman KLOBUCHAR. Very good. Thank you very much, Senator Blumenthal. 

I want to go to the heartland now with you, Justice Cady. We 

have a lot of jokes about Iowa and Minnesota, but I will tell them 

to you later. But we do know some good things come out of Iowa, 

and one of them is your experience and knowledge that you bring 

today to this hearing. 

What concerns did you hear in Iowa before cameras were introduced into the courtroom? What year was it again that they were 

introduced? 

Justice CADY. 1979. 

Chairman KLOBUCHAR. OK. Well, that was quite a while ago. So 

do you know what the concerns were raised back then? 
27 

Justice CADY. I do, and I think there is a tendency to want to 

brush the issue aside by addressing it on a constitutional framework. But I really think that this distracts from the real conversation because this issue does involve public policy, and it seems to 

be—the disagreement seems to be based upon certain assumptions. 

You think that it is going to cause some bad reaction, and others 

think that cameras in the courtroom is a healthy response. 

But our experience in Iowa has been that it has dispelled the 

fears that we had when we addressed this issue. We talked about 

the very same things that we have talked about in this chamber 

this morning. We talked about the same fears and concerns about 

how cameras would change the fundamental nature of the decisionmaking. But what we have found out is that we do not even see 

the cameras; we do not even remember that they are in the courtroom. We go about doing our business as we have always done our 

business, and any fear of any problems have always been minimized or eliminated by the fact that the judge or the justices still 

maintain control of the courtroom. Allowing cameras into the courtroom does not give up control over the proceedings. 

Chairman KLOBUCHAR. How about relationships with colleagues? 

Because oftentimes that is important as you look can you get consensus on a certain decision and get things done. Has that affected 

it at all, the cameras? 

Justice CADY. Well, it has not. We have had cameras in our Supreme Court proceedings since 2006. I have served on the court 

throughout that period of time, and I can cite no instance, no example where in any way the decisionmaking of the court has been 

altered by the presence of cameras during an oral argument. 

There may be times when I have thought twice about asking a 

question in a sensitive case, in a case that is followed closely by 

the public. But there were times before we had cameras in the 

courtroom that I thought twice about—— 

Chairman KLOBUCHAR. Because it would have been reported in 

some way? 

Justice CADY. Well, yes, you know that the work that you are 

doing is being examined more carefully by more people. 

Chairman KLOBUCHAR. And I think that is a thing here, when 

we are already doing audios, I think every Friday or a few days 

after the hearings. It is just really one step away, yet it would 

make it so much more accessible for so many people. 

How about some restrictions? Do you have limitations like we 

have in the Durbin-Grassley bill that would, say, a majority of the 

justices could decide because of due process reason that it would 

not be filmed? 

Justice CADY. Well, we do have restrictions, and we were very 

concerned about those restrictions when we first implemented cameras in our courtroom. But it is as if the restrictions are no longer 

there because we just do not run into any problems anymore. 

Chairman KLOBUCHAR. Do you remember if there were instances 

where you did not film something because of some reason that the 

justices felt it should not be filmed? 

Justice CADY. No. The only time that we have—in our Supreme 

Court proceedings, the only time when we have not filmed something is because we had to shut down our cameras for a period of 
28 

time because of budget cuts. But at no time have we ever thought 

this was not a case that is appropriate. 

Chairman KLOBUCHAR. Very good. 

Judge Scirica, just hearing all this, I know there are some pilot 

projects going on across the country in the Federal district courts. 

I think maybe there is one in the Ninth Circuit and other places, 

or maybe it is just in the district courts in the Ninth Circuit. Are 

you aware of those pilot projects and do you know what the outcomes are? 

Judge SCIRICA. Yes, very much. The pilot projects are only in the 

district courts, in 14 district courts around the country, and they 

involve civil trials, not criminal trials. And the project started last 

summer. It will go for 3 years. There already have been ten trials 

that have been televised, transmitted, and we will have some good 

experience after a 3-year period as to how they function. 

You know, going back to the earlier trial, in 1990 there was a 

very significant number of federal appellate judges, one-third, who 

thought that televising oral arguments actually affected the way 

they asked questions. They trimmed their sails on matters that 

were quite sensitive, very high publicity cases, and they did not engage in the kind of rigor that they ordinarily would have had the 

cameras not been present. 

In the trial courts there were a lot more problems with the impact on witnesses and jurors, and for that reason the Judicial Conference declined to adopt a principle that allowed the trial courts 

to televise their proceedings. Of course, the courts of appeals were 

given the authority to do it. 

But I think there is an important point that has not been mentioned yet, and that is, with respect to the state supreme courts 

that have adopted either televising or putting their proceedings on 

audio, practically all of these have been done through court rule. 

They have not been imposed by the State legislatures. A few have, 

but most of them have been done by the courts themselves. Right 

now there are 22 state courts that televise their proceedings, another 15 that do audio, and there are some pilot projects in some 

of the other states. And that is what I am saying here. This is 

something that is so essential to the courts’ function, particularly 

the Supreme Court, that is in a different arena from the state supreme courts and the federal courts of appeals. The Supreme Court 

is much more visible. The possible uses to which video clips could 

be employed, we do not know. But it is something, I think, that the 

Congress ought to consider before deciding whether or not to mandate this kind of coverage. 

Chairman KLOBUCHAR. So given that we are talking about cameras in the Supreme Court where we are not having trials go on, 

and I think many people up here, there is a knowledge that your 

district judge should have the ability to decide whether or not 

things should be filmed and the effect it might have on witnesses. 

But are there any pilot projects going on where they are actually 

filming appellate courts, which would be—— 

Judge SCIRICA. Not right now. 

Chairman KLOBUCHAR.—the circuit courts, which would be the 

best example, I think, for the Supreme Court situation. 
29 

Judge SCIRICA. There are none right now. It is only in the district courts. 

Chairman KLOBUCHAR. And then I will go back and end with 

you, Justice Cady, this notion that it is somehow going to change 

what people do. And I keep coming back to the fact that these 

things are audiotaped anyway now and that maybe with some of 

these earlier situations they were not audiotaped. But they are 

audiotaped now, so people are going to be able to broadcast things 

anyway, and it is just a way of making—by filming them, you 

make them more available to more people. 

And then I would also go to the fact of what would cause a lifetime-appointed judge to not want to ask that question. I suppose 

you could make the argument that a judge who is going to have 

a term limit and will be re-elected again, that somehow that would 

change. But I am just trying to get to this mentality of someone 

who has a lifetime appointment, unless they do not want to have 

protesters—but they already have protesters. So could you just discuss that, just that motivation from your perspective? And obviously Judge Scirica and Ms. Mahoney have made the point that 

they think it does have an impact. Justice Cady? 

Justice CADY. Well, the impact or the perceived impact of any 

change certainly must be considered, but so, too, must the benefits 

that are available from change. And as I said earlier, we have gone 

through this transformation, and what we have found out is that 

all that is left in the end is the benefits to the public. And we do 

not encounter problems. We, as I said, do not even remember that 

our cameras are in operation. They are set up in our courtroom in 

a way that is unobtrusive, barely noticeable. And as you saw from 

the small clip that I brought along with me this morning, you could 

see that the questioning was tough, it was vigorous, it was to the 

point of the issue. And it illustrated what our courts are really all 

about, and that is, digging into the bottom of the issue and entering a result and a decision that we call justice. And what the cameras do is expose that to the public, and it is critical in this day 

and age that the public be exposed to the way our courts truly operate, not how they are perceived to operate. 

Chairman KLOBUCHAR. Thank you very much. 

Senator Sessions. 

Senator SESSIONS. Well, this has been an excellent panel, and, 

Justice Cady, our court decided to have the cameras. Is that correct? 

Justice CADY. Correct. 

Senator SESSIONS. Mr. Goldstein and Ms. Mahoney, isn’t it true 

that oral arguments often do not—if someone only saw the oral arguments and had not studied the brief and studied the record, they 

would get a misimpression of the nature of the case because the 

Justice may be focusing on just, say, a small part of it? Have you 

been surprised at the tack that the arguments have taken when 

you have prepared diligently for the issues you thought were going 

to be most important? 

Mr. GOLDSTEIN. There is no question that for the members of the 

public in the audience who are admitted, as well as anybody who 

listens to the audiotape that is made available, and anybody who 

would watch on television, you can get dropped down into the mid-
30 

dle of a very complicated story. So it may not be the easiest thing 

to comprehend, just like this hearing, if you were to turn it on, 

might not be the easiest thing to comprehend. The question then 

is the overall effect and the benefit to public understanding and 

also the effect on the Court’s proceedings. 

Senator SESSIONS. Ms. Mahoney. 

Ms. MAHONEY. Certainly, and especially if you just listened to a 

short video clip, you might get a very wrong impression about what 

was transpiring there. I know Justice Souter, for instance, said 

that his opposition was based in part on the fact that he felt that 

television could run a very short clip of him that would maybe 

make it seem that he was not impartial, for instance, because questioning can be aggressive and devil’s advocate, that sort of thing, 

and that because of the nature of the TV news, they can only pick 

a very small excerpt. And Justice Scalia has said that he thinks it 

would actually contribute to the miseducation of the public. 

Senator SESSIONS. Well, Judge Scirica, it seems to me that there 

is a lot of truth to that. In other words, if you are on television and 

you are used to bringing a lawyer here, like Ms. Mahoney or Mr. 

Goldstein, and you ask them about a 40-year-old complex case but 

they know precisely what the question is about, wouldn’t the judge 

feel obligated to maybe have a prolonged part of the preamble to 

explain and make sure those people out there understood what he 

was saying so they would not misunderstand what he was saying 

when the lawyers would know immediately what the judge was 

asking? 

Judge SCIRICA. Quite possible. Quite possible. I think the other 

thing that I find troubling, Senator, is the possible uses to which 

film clips might be put in subsequent situations; that is, after the 

entire oral argument is shown, let us say, on C–SPAN, there may 

be excerpts or snippets that might be used for other purposes, and 

I do not know how we can anticipate whether that would happen 

or not or what form it would take. 

But I think it is something that the Supreme Court has thought 

about, primarily—and we have heard from Ms. Mahoney about 

some of their statements, and I think they are quite concerned 

whether it might affect the way they conduct oral argument, the 

kinds of questions they ask. A death penalty case, for example, 

where there are very serious constitutional issues, and the family 

of the victim happens to be in the room—I think judges are going 

to think very carefully about how they probe those difficult constitutional issues. And there are other sensitive cases as well. 

So I think it is not quite right to say that there will be no impact 

on the conduct of the argument before the Supreme Court. 

Senator SESSIONS. I have a memory of when I first started prosecuting cases that when the jury returned the verdict, the judge 

would tell them not to discuss their verdict. And then the Supreme 

Court, I think, said, well, free speech, you cannot tell them not to 

discuss their verdict. Well, I do not know—to me some majesty of 

the authority of that decision is a little bit eroded when one juror 

says, ‘‘I thought he was a skunk, but there was not enough proof,’’ 

and this one says this and this one says that, and it becomes a— 

so I think to some extent that you should judge a court—not to 

some extent, but virtually totally judge a court on the merit of the 
31 

opinion. Isn’t that what we should judge a court on and evaluate, 

Judge Scirica, basically the power and the authority of the opinion 

as rendered? 

Judge SCIRICA. Of course. 

Senator SESSIONS. And oral arguments often give very little insight into how that opinion would come out, and sometimes judges 

change their minds from the oral argument date to the time they 

write an opinion. 

Judge SCIRICA. Of course. Each of us who has served on an appellate court has had oral argument affect the way we think, and 

once we get into the meat of the case and start writing the opinion, 

you find out that you may come out the other way. 

The real work is done in preparing for oral argument, reading 

the briefs, reading the opinions, studying the law. Oral argument 

is helpful. It is a slice. Sometimes you play devil’s advocate. Sometimes you ask very provocative questions. But it is the written 

opinion that counts, and the public will judge the court, particularly the Supreme Court, on the soundness of its opinions, whether 

it is persuasive, and that is fully transparent. 

Senator SESSIONS. But that principle may be less so if they like 

the visage of one judge and not that of another one or the personality of one judge. I would just say, Madam Chairman, the Court 

seeks in an ideal world always to determine law based on the facts 

and determine what the law as applied to the facts should be. To 

the extent to which it becomes even a little more political, ideological, religious based or whatever, it comes up in the course of these 

arguments and the teeming cauldron of emotions that are out there 

in the world around that courthouse when it makes its decision, to 

the extent to which it is in any way moved from that ideal I think 

is not healthy. So it would seem to me the Court is a little uneasy—more than a little. The Court is uneasy that this would move 

them away from law. To that extent, I would be prepared to show 

deference to their conclusion on it. 

I would note that the legislation as now drafted, different from 

previous legislation, would mandate the cameras and operating the 

cameras in the courtroom unless in every case the Court votes to 

the contrary. 

Thank you for an excellent hearing and an excellent panel. 

Chairman KLOBUCHAR. It is not quite over because Senator 

Blumenthal has a question. I was trying to picture, though, as I 

was listening to you, Ruth Bader Ginsburg turning into Judge 

Judy, and I just do not think it is going to happen. 

[Laughter.] 

Chairman KLOBUCHAR. I do not think it is going to change her 

demeanor if she is on TV. This is just my view. 

But I will turn it over to Senator Blumenthal for a few more 

questions, and then we will wrap it up. 

Senator BLUMENTHAL. A very few more questions. Thank you, 

Madam Chairman, and thank you also for having this hearing, 

which I agree has been excellent due to the excellent witnesses 

that we have. And I have just a couple of questions I guess for Mr. 

Goldstein and Ms. Mahoney, and anyone else. 

You know, I am wondering, in light of the increased openness 

that we have in the Court, to its credit—I was a law clerk in the 
32 

1974–75 term for Justice Blackmun, and there were no recordings, 

there were no tapes available. Even we as law clerks had to attend 

physically the arguments if we wanted to hear what the advocacy 

was. And so I wonder whether the accessibility, which, as you 

said—I think correctly, Ms. Mahoney—for anyone who really wants 

to hear what is going on, it is available—whether that has changed 

the nature of argument. I sense not, but you have been doing it 

more than I have. 

Ms. MAHONEY. I do not think it has changed the way I argue 

cases, but I cannot really speak to what the Justices might think. 

Mr. GOLDSTEIN. I have never heard anyone articulate the idea 

that because it is being taped and now the tape is available at the 

end of the week that the oral arguments have happened differently. 

Television is a different kettle of fish, of course, for all the reasons 

that it invites more people to witness the proceedings, so it conceivably could have an effect. I do not see it happening for the reason 

that you gave, as someone who did have considerable oral argument experience and the great fear of being slapped down for 

grandstanding is a really serious one. And nobody wants to lose 

their case or embarrass themselves. 

And to the extent it changes how the Justices comport themselves, well, they are comporting themselves in front of the American public, and that I think is an acceptable cost, to the extent it 

is a cost. 

I would only make one other point, and that is, we have talked 

about this as if it were just about oral arguments and changing 

how oral argument is conducted. That is not quite right. The Court 

has other public proceedings. It announces decisions, and nobody 

would, I think, say that there is an interaction between lawyers 

that would change there. Yet those are not televised. And the 

Court also has proceedings where, for example, a Justice will be invested into the Court, and those are not televised either. And, 

again, not something that you would say ordinarily could somehow 

be affected by televising it, and yet it is a part of the democratic 

process that would be affected by the legislation as well. 

In your view—and any of the panelists can respond—could the 

Court decide that it felt that the intrusive nature of the writing 

press, given that the transmission of those writings now is virtually instantaneous, was so intrusive that it would just bar all reporting? 

Mr. GOLDSTEIN. The answer to that question is clearly no. The 

Court’s own decisions about public access make fairly clear that 

there is that form of access. But as Ms. Mahoney indicates, there 

is a different historical tradition that is involved there. 

I will say that the Court does have certain restrictions even with 

respect to the press and who can be a member of the press and how 

it is that the press functions inside the building, trying, I think, as 

with the website, as with the release of the audio, to get as much 

public access as they can. But that is an example, I think, where 

there would be a First Amendment prohibition to what they are 

doing here. I do not think anybody has made the serious argument 

that there is a First Amendment right to have a television camera 

in a court. 
33 

Senator BLUMENTHAL. Because it is in the nature of a time, 

place, and manner? 

Mr. GOLDSTEIN. Yes, that it is more—because of its greater relative intrusion on the proceedings, that it requires some physical 

installation, it is just—as has been said, it is a line-drawing difficulty, and the fact that there are other avenues of receiving the 

information through the written press that satisfies the First 

Amendment. The question whether you have the legislative power 

to, nonetheless, enact such a law and in your own view say, well, 

there is a real First Amendment value here—not everything has to 

be a Federal case. Not everything has to be a constitutional violation. But we can all say, gosh, it is really good for the American 

people to see how their Government operates. That is really what 

the First Amendment is about, and so that motivates us to pass 

legislation like this. That would be a different question. 

Senator BLUMENTHAL. Thank you. 

Thank you, Madam Chairman. 

Chairman KLOBUCHAR. Thank you. 

Senator Sessions, do you want to add anything? 

Senator SESSIONS. No, just thank you. It is a good panel. I enjoyed this. These are important issues. I do not think it is the most 

crucial issue in the world, but it is a tough issue to know precisely 

what the right thing is, and we thank you for participating. 

Chairman KLOBUCHAR. Well, very good. I think you saw from all 

of the Senators that attended today, with Senator Blumenthal, 

Senator Whitehouse, Senator Durbin, Senator Lee, Senator Grassley, and Senator Sessions and myself, that there is big interest in 

this. And I am one to believe, as Mr. Goldstein has pointed out, 

that this would be best if the Supreme Court made the decision 

themselves. So hopefully they are watching C–SPAN and they see 

all of us here and hear these arguments instead of having it done 

legislatively. But one of the reasons that we are focused, some of 

us, on the legislation is, as Senator Specter pointed out, it has been 

25 years and waiting. And the idea here is, as my colleague Senator Sessions talked about, the importance of the dignity of the 

Court and the majesty of the Court, which I think we all can understand. 

On the other hand, we want other people to be able to see that 

besides the 250 people that are crammed into a room to watch, that 

the people in Justice Cady’s home State should be able to tune in 

and watch this and watch important issues of the day that I believe, while we, as Senator Sessions pointed out, have a lot of 

things going on, a lot of those things end up in the Supreme Court 

in one way or another. And I think that is what this is about, understanding that we want to respect the decisionmaking process 

and not get into the private decisionmaking process and the debates going back and forth and how harmful that would be, but, 

in fact, just the public portion of it and the pronouncement of the 

decisions as well, as Mr. Goldstein has pointed out. 

So I wanted to thank all of you. This has been a highly interesting hearing, and I hope that we will be able to have people 

watch it. As it is recorded, they will be able to see the arguments. 

So I wanted to thank Senator Specter, who had to go back to his 

home State, as well as Mr. Goldstein. Thank you especially, Justice 
34 

Cady and Judge Scirica, for being willing to talk about your own 

personal experience and kind of get beyond the comfort level of 

where you get to ask the questions and we get to ask the questions 

instead. We kind of like that. And then also thank you, Ms. 

Mahoney, for your vast experience that you bring to this, also, I 

should have mentioned, being a clerk for Justice Rehnquist, so the 

experience that you bring to this as well. 

So thank you, everyone. We will keep the record open—— 

Senator SESSIONS. Madam Chair, could I offer a letter from 

former Senator Bob Kerrey in opposition to the legislation? 

Chairman KLOBUCHAR. OK. 

Senator SESSIONS. Thank you. 

[The letter appears as a submission for the record.] 

Chairman KLOBUCHAR. Very good. Then I will also offer the—not 

to be one-upped, I will also offer the statement of Chairman Leahy 

supporting the cameras in the courtroom. 

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

Chairman KLOBUCHAR. I want to thank all of you for being here. 

We will keep the record open for 1 week for people to submit further statements. 

So thank you very much, and we look forward to debating this 

issue in the months to come. The hearing is adjourned. 

[Whereupon, at 12:01 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 
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