Monday, May 3, 2010

Full Blown Study Mode - Courtroom Cameras

Edit: when I started this post, it was supposed to be the first paragraph and a link for you to ponder cameras in the court rooms. And then I started writing, and the post below ensued. As such, I have modified the title, because the post might have some, albeit very little, reader value.

Four days out from my last law school exam...ever. Unfortunately, I actually have to do a little work to make up for the fact that I have not been very productive during the semester. Sorry, no do-it-yourself projects for awhile. No philosophical rants either.

But here's a quick link to something that's a bit in the news right now: cameras in court rooms. As some of you may know, the constitutional challenge to Proposition 8 had a little twist to it when one small issue was expedited up the ladder to the Supreme Court. The issue: cameras in the court proceedings. The reporters were ultimately denied camera access to the trial. Here's a very one-sided story discussing the issue. For those of you in a hurry, here's the punch line: the Supreme Court ultimately decided not to allow access. As far as federal courts go, the rule is to not allow cameras, so the LA Times is being a bit ridiculous to chastise the Supreme Court's holding. But it does bring to light the bigger issue of whether there should be camera access. 

Of course, the obvious battle cry for supporters of cameras is "what do you have to hide"? The answer is: nothing. But nonetheless, I am of the opinion that there should not be cameras in a courtroom. The courts, and I think I'm focusing more on the federal courts here, have always enjoyed a level of legitimacy that other branches of government have not received. It might be because federal judges are appointed for life and their salary can never be reduced. (These two things are guaranteed by Article III of the Constitution). These protections likely allow judges to act in society's best interest, because they are not beholden to anyone after their appointment. Thus, they can act faithfully in a manner that they believe is consistent with case law and precedent.  They do not have to worry about the election that is eighteen months out.  My concern with cameras is that these courtroom videos will be taken out of context, spliced, and altered in other ways so as to attack judges and impinge on their credibility. This is a huge problem.

When I hear politicians speak, I automatically turn on a filter to remember that these people are beholden to their party, contributors, and most-influential constituents. There is a level of distrust and skepticism. That same level of skepticism cannot exist between federal judges and the public. When judges write opinions and ask questions, they need to be viewed as infallible for the good of the system. There can be no distrust when they announce what is and is not a fundamental right. We cannot allow judges to be viewed in the same light as politicians. But I fear that that will be the result with doctoring of courtroom videos. For example, in a recent Supreme Court oral argument, Chief Justice Roberts asked something to the affect of "what's the difference between an email and a pager"? There were a number of people criticizing the Chief Justice for being ignorant of technology in today's world while wielding so much power. The problem is that the question was taken out of context. Chief Justice Roberts was really trying to play out the technical differences regarding distribution of messages to 3rd party servers and the intended recipients. But now there are thousands of people who think the Chief Justice is an idiot. That can't be allowed.

Some of you may think I'm overreacting, but I don't think I am. It is hard to appreciate the special role played by federal judges in our government without engaging in an extensive study of separation of powers, civil rights, federal common law, and judicial review. It is scary to admit, but we put an awful lot of power in judges' hands. When judges execute that power, skepticism and distrust is deadly. It eats away at stability.

Lastly, some of you may point to my Chief Justice Roberts example and say "well it seems the details of what goes on is already public record, so who cares if we add video to the audio"? (I concede that there are audio recordings available) But there are two points to be made. First, do you think those who only read the Chief Justice's question out of context went online to find the whole transcript? I will foster an answer: No. Second, we don't need to compound what is already, obviously, a problem by giving clever troublemakers facial expressions and body language to misrepresent to further misconstrue the Justices. Two wrongs don't make a right...

Hope everyone's black rock is divine today...

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