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Walter Dellinger calls it “the hardest thing I’ve ever had to do.” The former acting solicitor general and current partner at O’Melveny & Myers was offered the chance to argue on behalf of Vice President Al Gore before the Florida Supreme Court in its historic session on Nov. 20. “It might possibly be the most important oral argument ever,” says Dellinger. But with two oral arguments set this week and next before the U.S. Supreme Court — that other Supreme Court — Dellinger arrived at a decision he hated to make. “I have a fiduciary responsibility to my clients, so I just couldn’t do it.” The assignments went to David Boies, instead. Dellinger passed on his ticket into the history books, in favor of arguing on racial redistricting in Hunt v. Cromartie, No. 99-1864, and on diversity jurisdiction in Semtek International Inc. v. Lockheed Martin Corp., No. 99-1551. In the midst of high electoral drama in Florida, Dellinger wasn’t the only lawyer who was left thinking that the U.S. Supreme Court, usually the center of the legal universe, was somehow the wrong place to be — at least until the U.S. Supreme Court granted certiorari in one of the Bush campaign’s petitions the day after Thanksgiving. Many of the key players in Florida were veterans of Supreme Court advocacy. In addition to the first wave of adversaries in federal court in Miami the week before — Harvard Law School’s Laurence Tribe (for Gore) and Gibson Dunn & Crutcher’s Theodore Olson (for Bush) — the second batch before the Florida Supreme Court was chock — full of high court veterans: Nova Southeastern University School of Law Professor Bruce Rogow (for Palm Beach County Supervisor of Elections) has argued frequently, one time going up against Barry Richard (for Bush) of Greenberg Traurig, in the 1995 lawyer advertising case of Florida Bar v. Went for It. Michael Carvin (for Bush), a partner in D.C.’s Cooper, Carvin & Rosenthal, is another frequent Supreme Court advocate. And Boies (for Gore) of Boies, Schiller & Flexner, long before he became known for slaying the Microsoft Corp. and wearing cheap suits, argued in the Supreme Court in the 1987 case of Pennzoil v. Texaco against Tribe — now his ally on the Gore team. They get along swimmingly now, a Gore legal team insider says. But there was no mistaking that the lawyers were in a different place than the Supreme Court in Washington. It wasn’t just the fact that the Florida chief justice wore a stripeless black robe. Perhaps the biggest difference was the presence of cameras in the chamber of the Florida Supreme Court. At a confusing moment when the legitimacy of a presidential election was at stake, the public was able to witness the arguments of both sides and assess their validity. Cameras have been a presence in Florida courts for more than 20 years, and it is a fortuitous coincidence of history that Florida is where they were needed in a pinch. Now, after a series of open proceedings in the lower courts, the fate of the Florida recount will vanish within the Supreme Court’s marble bunker — the scheduled Dec. 1 oral argument shielded from direct inspection by all but the few members of the public able to secure a seat inside the courtroom where cameras are famously forbidden. Sure enough, as soon as the Bush campaign filed its appeals with the U.S. Supreme Court last week, C-SPAN Chairman and CEO Brian Lamb wrote to the chief justice asking for permission to cover any Supreme Court hearing that might result. “The public interest in the Court and its role in our government would likely never be higher,” Lamb wrote. “We respectfully suggest that televised coverage of that role would be an immense public service and would help the country understand and accept the outcome of the election.” C-SPAN stands ready to offer its services as the pool operator for both audio and video, says Bruce Collins, the network’s vice president and general counsel. C-SPAN could implement a plan for coverage that it has had on file ever since the Court allowed broadcasters to demonstrate new camera technology inside the Court in 1988. “We’d be able to do it without difficulty,” Collins says. But all signals from the Court suggest the justices will not relent, even in the name of history. In an appearance before William & Mary law students two days after the election, Justice Stephen Breyer took his usual stance of not wanting to tinker with success — that is, not wanting to experiment with cameras in the Supreme Court for fear that the “public’s trust” in the Supreme Court might weaken. Even more discouraging comments were made recently by Justice Ruth Bader Ginsburg on the issue. Ginsburg commented at length on the question of cameras at the Supreme Court to the Canadian legal publication The Lawyers Weekly last month during a trip to Ottawa. And while some of her comments on the camera issue sounded positive, the overall outlook was negative: Her colleagues still don’t want cameras in the Supreme Court, she suggested. “I have no strong feeling on that subject, therefore I respect the judgment of my colleagues who do,” she said, adding, “I would not object, just for myself, to having proceedings televised, provided the control remain in the hands of the Court and that the coverage was gavel-to-gavel-but I do not think a decision like that should ever be forced on judges who take a different view. Right now, the view is that our proceedings should not be televised.” As those comments suggest, Ginsburg is holding firm to her untenable position that camera access to the Supreme Court should be allowed only if it could be guaranteed that the only use of the access would be for gavel-to-gavel coverage. Asked about Ginsburg’s statement, Collins said, “We would never enter into an agreement like that.” C-SPAN has told the Court since 1985 that if camera access were allowed, it would guarantee that the Court’s proceedings will be aired gavel-to-gavel on C-SPAN. But C-SPAN would never bar other media from picking up the footage and using it in shorter formats, Collins says. That is routinely done with House and Senate proceedings, which C-SPAN airs in full. In his letter to the Court last week, Lamb was carefully to state that “we would make our coverage available to all accredited news organizations on a pool basis.” The Lawyers Weekly noted that the Supreme Court of Canada, where cameras are allowed, has permitted excerpts to be aired “without incident.” Just as discouraging for the cause was the elitist rationale Ginsburg offered for conditioning camera access on gavel-to-gavel coverage. Adopting the posture of the late Chief Justice Warren Burger and Justice Antonin Scalia, Ginsburg suggested in the interview that the Supreme Court’s proceedings are far too complicated for mere mortals to comprehend. “It’s very easy to distort a legal proceeding if you don’t do it gavel-to-gavel, so it would have to be the full argument,” Ginsburg was quoted as saying. “They cannot be successfully edited by someone outside the judicial house. I know that very well. Even a written transcript of an argument can be distorted, so there is that concern.” Imagine how far a president or lawmaker would get with a similar argument for limiting camera access to a press conference or a floor debate. Ginsburg told the newspaper that even the printed press reports inaccurately on Court hearings and decisions “more often than one would hope. … And on television, it’s almost hopeless, because they have so little time and they have to digest maybe a 40-page decision down to a one-minute sound bite, so they are bound to get it less than right.” Ginsburg also invoked the views of Justice David Souter, another adamant foe of camera access, to bolster her position. “My colleague, David Souter, was a judge on the New Hampshire Supreme Court for several years, and that court televised its proceedings,” she said. “Justice Souter, based on his experience in New Hampshire, tells the rest of us who haven’t had experience with cameras in the courtroom two things about it. “One is that the lawyers do tend to act up for the camera more than they would without the camera. And the other is that the judges sometimes censor their own questions because they fear that the question would not be properly understood by a lay audience. “If the question is put in a conversation between an advocate and the bench, it can be put in a condensed way using key words and phrases that would not be understood, or might be misunderstood, by the public at large.” At least, Ginsburg was candid in her remarks, revealing what is probably the biggest reason why justices don’t want to allow cameras inside their chamber. “The third reason some of my colleagues had,” she said, “is they value their anonymity. There are only nine Supreme Court justices. David Souter, for example, can go to the supermarket and do his shopping and no one will notice. Now, that’s impossible for Clarence Thomas. It’s impossible for Sandra Day O’Connor, and it’s less possible for me than it is for Justice Souter. “But that concern [is] that you will lose totally your privacy, if your face is known on television. I think our Chief Rehnquist is a good example. He was able to go about, and no one knew who he was, although he was the chief justice of the United States, until the impeachment proceedings.” Regardless of the outcome of the Florida litigation, it ended up making a great case for cameras in the appellate courts: The lawyers and justices conducted themselves responsibly, using the adversarial system to reach a solution. And millions of people got to see the legal system function at its highest level. But don’t expect any of it to trickle up to the Supreme Court. It’s likely the justices will be able to squeeze the produce at Safeway unnoticed for years to come. Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times.

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