The fast-moving dispute over broadcast access to the federal trial on California's ban on same-sex marriage has triggered a dustup within the leadership of the federal judiciary.
Last Friday, on the eve of the San Francisco trial, top officials of the Judicial Conference of the United States sent a stern letter (pdf) to Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals reminding him of Judicial Conference policy against televising trials. Kozinski wrote back on Sunday, warning that, if federal courts don't experiment with access and technology, Congress will force the federal courts to act.
The exchange, made public in supplemental briefs filed with the U.S. Supreme Court on Tuesday, adds a new dynamic to the dispute over Judge Vaughn Walker's plan to tape the California trial for posting on his court's Web site and also, on a delayed basis, to allow the video to be posted on YouTube.
On Monday, supporters of the gay-marriage ban who oppose the broadcast plan won a temporary stay from the Supreme Court, which said it would rule again by this afternoon after further consideration. The stay stopped the trial video from being transmitted to remote federal courthouses, and the broader plan for Internet posting is still pending.
The involvement of the Judicial Conference leadership in trying to halt the Walker experiment is significant because Chief Justice John Roberts Jr., who will be weighing in on the plan with the rest of the Court today, also presides over the Judicial Conference.
Most members of the high court oppose or are indifferent to cameras in the Supreme Court, asserting that barring cameras highlights the nonpolitical nature of the courts. Access advocates were encouraged last year when Justice Sonia Sotomayor, who favored cameras at the 2nd U.S. Circuit Court of Appeals where she was formerly a judge, replaced David Souter, an adamant "over my dead body" opponent of broadcasting federal court proceedings.
Charles Cooper of Washington's Cooper & Kirk, who represents opponents to the broadcast plan, said the letter from the Judicial Conference leadership underscores how airing the trial would run contrary to long-standing policy and could cause "irreparable harm" to trial participants.
The Jan. 8 letter to Kozinski came from 3rd Circuit Chief Judge Anthony Scirica, chair of the Conference's executive committee, and James Duff, secretary to the Conference. "As you consider the recent request by the Northern District of California to make publicly available videotape of a civil trial," they wrote, "we ask you to consider the Judicial Conference policy" against broadcast of any federal trial court proceedings. The federal courts have long discouraged cameras at all levels, though since 1996 it has allowed appeals courts to experiment with allowing broadcast access.
In a lengthy reply (pdf) addressed to "Tony and Jim" on Jan. 10, Kozinski said Judicial Conference policy on such issues is not binding on the lower courts. And in any event, Kozinski said, all that he has approved so far is allowing the video of the trial to be transmitted to remote courthouses because of the heightened public interest. Anything beyond that, he said, is "not ripe for decision" because of pending technical issues.
But Kozinski also defended the pilot program he launched recently to encourage experimentation in this area -- the program under which Walker devised the YouTube plan. Kozinski said the experiment was started after "considerable deliberation and careful research" and does not run contrary to Judicial Conference policy.
He also noted how much technology and public attitudes have changed since 1996, when the Conference last considered the issue. The public, he said, "demands far more transparency from its public institutions than it did in 1996."
Kozinski warned that if federal courts do not respond to public demand for greater access to the courts, Congress will legislate to require it. Bills that would require federal courts to allow cameras have been introduced periodically over the years in Congress, he said.
"Like it or not, we are now well into the twenty-first century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology," Kozinski wrote. "If we do not, Congress will do it for us."
Stacey Woelfel, chairman of the Radio Television Digital News Directors Association, which has long fought for broadcast access to the courts, said the federal courts have stubbornly resisted "what states have already been doing for years." Woelfel said he is pleased that the issue has gone before the Supreme Court in the form of a request from a lower federal court. Even if the access is ultimately denied, Woelfel said, the debate over cameras will have been revived. Besides, he said, "We won't have lost much, since we don't have much right now." But he added, "I remain optimistic" that the Court will allow the 9th Circuit plan to proceed.