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If you want to learn about a U.S. Supreme Court justice’s ideology and preferences, Senate confirmation hearings are about as useful as consultations with a Magic 8-Ball. Anyone forced to suffer through hour upon hour of senatorial speechifying knows that whatever the purpose of these exercises is, it’s most assuredly not to glean any understanding of the nominee’s views. Indeed, there is no tool on earth that is going to reveal a justice’s views, including polygraph, X-ray or torture, due to the First Rule of Confirmations: Thou Shalt Have No Opinions in the First Place. As hideous as these proceedings may be, they are made even worse by the omnipresent television cameras. Cameras create all the wrong incentives for the committee members: to speak rather than listen; to look smart rather than be smart; and to sink a solid three-point sound bite rather than ferret out truthful testimony. And here’s the real irony: We televise confirmation hearings, but don’t televise Supreme Court oral arguments. So at the end of the day, the American public gets to sit in on the job interview, but the job performance is blacked out. Here, then, is my modest proposal: Let’s switch things around and televise Supreme Court oral arguments while blacking out the confirmation hearings. That way, the senators will have less incentive to act up and act out, while the justices will have more incentive to behave like philosopher kings. The move to introduce cameras into the Supreme Court’s super-secret courtroom is not new. Nor are the many objections that have been raised against it. Since the decision about allowing cameras is solely left up to the justices, it’s probably not surprising that cameras are still barred from the high court � even though all 50 states and other federal courts have at least experimented with them, often with great success. The main counterarguments have to do with the purity of the proceedings: Cameras would be used to distort and mischaracterize events; they would foster grandstanding on the part of the justices and lawyers; they would diminish the high esteem in which the court is held; and the ensuing spectacle would make the judiciary appear political. The additional argument � which is, I suspect, the real one � is that it would invade the justices’ privacy. If their faces became famous, they could no longer amble through antique shops unnoticed on summer mornings when the court is in recess. FEAR OF SOUND BITES The distortion claim is an interesting one. Opponents of cameras in the court worry that TV coverage would lead to tiny sound bites being rebroadcast; sound bites that would lose the complexity and nuance of an argument. In 1986 then�Chief Justice Warren Burger told a group of newspaper editors that he might conceivably allow cameras into the courtroom, but only if the proceedings were broadcast gavel-to-gavel. Among Burger’s objections were that, without the enforced continuity, things would be taken out of context and distorted. Of course, the argument that you can’t comprehend the highly technical and nuanced arguments before the court is impossibly elitist. But if it’s true that sound bites necessarily distort a process, why aren’t the justices crusading against televised confirmation hearings? Do they think that the job interview can be “distorted” without consequence? The second argument � that cameras foster misbehavior � almost goes without saying. Think only of the O.J. Simpson trial. But if they foster bad behavior among senators, they may also promote good behavior among justices. If the justices knew, for instance, that they were being watched by millions of eyeballs, they might be less inclined to giggle among themselves at oral argument. Senators are generally running for reelection. So put them in front of a television camera and they have no choice but to go wild with their big hair and their big speeches. But Supreme Court justices are beholden to no one. They hold their seats for life. We have no mechanism to remove them. So why shouldn’t we be entitled to monitor their job performance? Should they choose not to perform � to stare fixedly at the ceiling throughout oral argument as Clarence Thomas has been known to do � they suffer no consequences. And having a camera trained on them might just induce them to work harder. Finally, consider the argument that televised hearings would diminish the esteem enjoyed by the judiciary, making the court appear as political as the other branches. This is, when you stop to think about it, a rather bizarre claim: If nobody can see that we are political, they won’t think we are political. Or as former Chief Justice William Rehnquist said in 1992, cameras “would lessen to a certain extent some of the mystique and moral authority” of the Supreme Court. Now Greta Garbo is certainly entitled to worry about her mystique. But government officials should not be. Supreme Court justices may well worry that televisions in their church � I mean palace � I mean courtroom � would decrease the public esteem for the institution. I disagree: I believe that knowing what the justices do and how superbly they do it would only increase public approval of the court. But more significantly, poll after poll shows the court is held in extremely high esteem, whereas Congress is rated far lower. Taking the cameras out of the Senate and putting them in the courtroom would level the playing field, allowing the American public the opportunity to hate all three branches of government equally. With respect to the politics argument � of course the court is political. And it does the court no good at all to be at its most secretive precisely when it is acting most ideologically. Consider that in November 2000, when Rehnquist rejected requests by several TV networks to televise the hearings in Bush v. Gore, he wrote in a letter to C-SPAN that “a majority of the court” agreed that it was best to block the intrusion. But the consequence of keeping cameras out was to reinforce the idea that the fix was in; that the election was decided by a secret cabal of faceless jurists in a process so corrupt it needed to be kept secret. Precisely because the court has inserted itself into the most hotly disputed questions, it should open up its activities to the public. It would serve to reassure Americans that there are immutable legal principles and processes undergirding their decisions, as opposed to judicial coin flips. The same is true for confirmation hearings: They appear political because they are political. Taking the cameras out may render them less political and more genuinely focused on truth-seeking. Unlike the justices, the senators vote their instinct, nothing more. And watching someone vote their instinct is like watching them eat snails. Why bother? Finally, some of the justices worry that cameras in the courtroom would reduce decision making to cheap entertainment. Justice Antonin Scalia recently said, “I think there’s something sick about making entertainment out of real people’s legal problems.” Scalia overestimates how interesting real people’s problems are at the Supreme Court level, where there are no visible parties, no emotions, and no drama. This is not “Judge Judy.” Televising oral argument would violate no one’s privacy � with the exception of the nine sitting justices who are arguably already granted far more than they deserve. RELUCTANT CELEBRITIES Which brings us to the real objection to cameras in the court: The justices want their privacy. In 1996 Justice David Souter testified before Congress that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Well, if we are going to grant the justices that privilege, we should certainly grant it to their future colleagues as well. Because, let’s face it, confirmation hearings can be awkward: Nominees are grilled about their past jobs, their writings, and any possible ethical or moral lapse in their lifetimes. By contrast, oral argument is dry and doctrinal, far less invasive of the justices’ privacy. Because it’s not about them. (Well, maybe sometimes it’s about Antonin Scalia.) If we want to protect judicial privacy, we should also protect the privacy of the lone nominee sitting in front of a circle of senators, being raked over the coals for grocery lists written 30 years ago. All of this ultimately raises the question: Why do the justices get to decide? Of course they don’t want cameras to televise their jobs any more than I want a camera to televise mine. But what I do isn’t a cornerstone of democracy. There was a time in which Congress made the same arguments for keeping C-SPAN at bay, but most of us now acknowledge that it is better for Congress (and for democracy) to promote openness and transparency; to trust citizens to watch and decide for themselves. And my guess is that after David Souter gets used to gaggles of middle-school girls clamoring for his autograph at Safeway, he’ll learn to love the exposure, too. Celebrity is the price one pays for scoring a starring role in the life of this nation. The stakes at a confirmation hearing are unbelievably high. These senators are placing an unelected official on the bench for a lifetime. But many justices � again, Clarence Thomas is an example � believe that oral argument doesn’t have much impact on the justices’ decisions in a case; they decide based on the briefs and precedent and closed-door sessions. Oral argument has one purpose: It is a tiny piece of theater to let the public in on the court’s work. So why not let the public in en masse? There is no point in public theater with such limited seating. We need to start to be honest about the ways in which televised confirmation hearings are destroying the process. A system that ought to be about truth-seeking and hard scrutiny has morphed into VH-1 � with a focus on appearances to the exclusion of substance. This is no way to make decisions of so much moment to the country. At the same time, the events at oral argument are highly scripted and formal. There is no possibility of grandstanding on the part of the justices � they’ll keep their jobs whether they are scintillating or soporific. Pennsylvania Sen. Arlen Specter has, again this year, introduced a bill that would allow television cameras into the high court. I would vote for that with one amendment: They should roll them right out of the Judiciary committee room and across the street instead. Lights, camera, action! Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate. She is co-author of “Me v. Everybody” (Workman Publishing Co.). This article was originally published in The American Lawyer, a Recorder affiliate based in New York City.

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