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Spokane, Washington  Est. May 19, 1883

A supreme case for cameras

Linda P. Campbell Fort Worth Star-Telegram

Justice Anthony Kennedy didn’t intend it, but in pleading with members of the Senate Judiciary Committee last week, he made the strongest argument yet to televise Supreme Court arguments.

“A majority of my court feels very strongly, however, that televising our proceedings would change our collegial dynamic. And we hope that this respect that separation of powers and checks and balances implies would persuade you to accept our judgment in this regard,” Kennedy told senators gathered for a hearing on judicial independence and judges’ safety.

The justices don’t discuss the cases before the public arguments that are strictly held to one hour for most cases. Instead, the court members channel their concerns through questions to the lawyers, Kennedy explained.

“We’re talking with each other. And sometimes the dynamic works, sometimes it doesn’t, but we’re using the attorney to have a conversation with ourselves and with the attorney. And this is a dynamic that works,” he said.

“Please, senator, don’t introduce into the dynamics that I have with my colleagues the temptation, the insidious temptation, to think that one of my colleagues is trying to get a sound bite for the television. We don’t want that.”

So, the truth is out: The fear isn’t grandstanding lawyers but attention-hogging justices.

Just imagine the entertaining possibilities …

Justice: Do you concede that harmless error analysis is ever appropriate?

Lawyer: We do not concede that.

Justice: Can you explain for Justice Know-It-All whether we’re in as good a position as the state court to conduct harmless error analysis?

Fact is, showboats and egotists don’t need cameras to angle for the spotlight. You can already find evidence in the argument transcripts available on the court’s Web site ( www.supremecourtus.gov), though it doesn’t translate into print quite the way it does in person or would on video.

True, the court should be judged by its rulings. But aren’t taxpayers entitled to a better sense of who the court members are and – for better or worse – how they act while on the public dime?

It’s ironic and baffling that Kennedy will subject himself to televised questioning in which members of Congress are in control (he and Justice Clarence Thomas testify regularly before appropriations subcommittees), but he objects to being on camera in a setting in which the justices are in command.

You can watch all 1:59:04 of his Valentine’s Day Senate Judiciary appearance at www.c-span.org. (Click on “all recent programs.” Or go to www.howappealing.law.com and scroll to Feb. 14 postings for a link.)

You’ll see Democrats and Republicans asking about judicial salaries, legislation to strip court jurisdiction, concerns about judicial policymaking and other topics.

A question about federal sentencing prompted Kennedy to expound on the system’s flaws, including mandatory minimum sentences.

Democratic Sen. Dick Durbin, of Illinois, pushed back against Kennedy’s insistence that without higher salaries, the judiciary can’t attract the best candidates. “I find it hard to imagine that our Founding Fathers believed that an independent judiciary required compensation at a level higher than 99 percent of the people whom they work for in the United States,” Durbin said about proposed raises.

Republican Sen. John Cornyn, of Texas, rambled for most of his allotted time. But to his credit, he advocated televising Supreme Court arguments.

“Judges do tend to compete a little bit with … who can ask … the biggest zinger of a question,” said Cornyn, who spent six years on the Texas Supreme Court.

But, he said, “I would just wonder if there might be some opportunity for us to work with you and your colleagues to try to find a way to allow the American people to see what it is you do day in and day out rather than to suspect that the Supreme Court is really not all that much different in the way it operates than, perhaps, Judge Judy or … Law and Order episodes.”

I hate to sound like a bad rerun on the value and necessity of cameras in the Supreme Court. But Kennedy might have capsulized the argument best:

“The Constitution doesn’t belong to a bunch of judges and lawyers,” he said. “It belongs to the people.”