A federal judicial committee is currently considering whether judges should have the discretionary power to permit cameras in the courtroom for certain civil, non-jury cases. Judge Sonia Sotomayor is a member of that committee. During her confirmation hearings the Senate will likely ask for her views.
Our belief is that gradually opening up the court system and allowing individual judges to experiment with providing greater access of proceedings to students, lawyers, litigants and members of the public will improve the public's trust and confidence in the judiciary, enhance the efficiency of the legal process and further the administration of justice. Judges will do so in a responsible manner that preserves the dignity of the court having the full discretion to limit distribution in any manner they see fit.
There is precedent for giving judges such powers. Federal trial court judges in her home state of New York have recently issued over half a dozen orders permitting cameras in civil, non-jury proceedings. Another committee of judges in the Southern District of New York is now considering whether to forbid their judges from doing so. Last week a federal judge in Delaware ruled to allow a hearing to be recorded on video for the benefit of the parties directly involved in the proceedings. Judges in district courts throughout the country have allowed transcript feeds to be sent to attorneys in the office.
Last month, Judge Lipez from the 1st Circuit court of appeals wrote "[T]here is no sound policy reasons to prohibit the webcasting authorized by the district court." He observes there is "an unprecedented opportunity to increase public access to the judicial system" and there is "no meaningful difference" between what is proposed in the district court and what is already being done in the appellate court. He concludes that the local court rules and the Judicial Conference policies "should all be reexamined promptly."
The commonly recited arguments against broadcasting do not apply to the proposal before the committee Judge Sotomayor is on. There is no jury to be influenced by media coverage. Possible witness intimidation in criminal proceedings would not be relevant. And judges still would have complete discretion to prohibit cameras if they wish.
Justice Thurgood Marshall was inspired to become a lawyer by watching live arguments in the courtroom as a child. In the early days of our Republic citizens would frequently visit the local town courthouse to watch live proceedings. The children of today also need to understand and participate in our government. Video access to our Judiciary will further this goal. It will enhance the public's knowledge and faith in the court system. The Judiciary's heart is in the right place. Judges spend countless hours speaking to law students, participating in moot courts, and visiting high schools. However, a country of 300 million people cannot rely on 900 federal judges with full-time jobs to reach students throughout our school system on an individual basis.
Court budgets are low and overstretched. Judges work with pay that is often a fraction of what they would be making in private practice. Yet judges cannot lobby for themselves. They need others to speak up on their behalf. The more who understand the importance of their work, the better. By gradually and responsibly opening access to the court system, the Judiciary will gain the support of the greatest advocates in the world—the people of the United States.
If the committee Judge Sotomayor is on wants to examine how camera access on civil, non-jury matters works in practice, it should look to the Delaware Chancery Court, one of the most respected business courts in the world. The chancellors have allowed camera access on a countless number of the country's most prominent business disputes from Disney to Liberty Media. Businesses observe what is going on in the courtroom, they like what they see, and they take their cases to Delaware. The cases are not sensational, but often are of great interest to subsections of the public such as professionals with a relevant area of expertise. Coverage is gavel to gavel. Not once has the coverage negatively impacted the fairness of the judicial process. There is a professional environment that preserves the dignity of the court. There is no media circus. Over 50 law schools receive unlimited access to the video recording for their students.
Michael Breyer is chairman & president of Courtroom Connect, which provides litigation support connectivity to the legal industry, and Joel Hyatt is CEO and co-founder, with former Vice President Al Gore, of Current Media and is a lecturer at Stanford Law School.