Thursday, April 29, 2010
The Senate Judiciary Committee today voted out three bills that would provide for and encourage televised broadcast of federal court proceedings.
The most significant measure, S. 446, would require the Supreme Court to open its proceedings to television coverage:
The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.
The provision is controversial: The media and open government advocates push for televised proceedings, but the Court has balked--providing only transcripts of oral arguments (and only very rarely audio recordings) on the day of arguments. The Senate bill requiring televised proceedings also raises serious separation-of-powers concerns. As Justice Kennedy has said, "It is not for the Court to tell Congress how to conduct its proceedings . . . . We feel very strongly that we have intimate knowledge of the dynamics and the mood of the Court, and we think that proposals mandating and directing television in our Court are inconsistent with the deference and etiquette that should apply between the branches."
A second bill, the Sunshine in the Courtroom Act of 2009, S. 657, would authorize (not require) a presiding judge in the lower federal courts to permit broadcast of courtroom proceedings, thus dodging the separation-of-powers concerns in S. 446. The third measure, S. Res., simply expresses the sense of the Senate that the Supreme Court should permit televised proceedings if they don't violate a party's due process rights.
The Senate's move comes in the wake of the Supreme Court's order earlier this year staying the television broadcast of the Prop. 8 case--the same-sex marriage case--in California.