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Despite Kagan charm, high court still camera shy

For most, it’s not as entertaining as watching a singer make the American Idol judges’ jaws drop, or seeing a hard-charging entrepreneur impress The Donald.

But if you happen to be someone who would like to kick back on the couch and watch an exceptionally talented lawyer win over the members of the United States Supreme Court, don’t get your hopes up.

You can’t – at least not yet. 

Unlike the everyday proceedings of the House and Senate chambers, the high court’s consideration of important cases takes place out of the eye of television lenses. And unlike the public scene of Elena Kagan’s confirmation hearing on Capitol Hill this week, the snapping of camera shutters is silenced in the court’s chamber. Reporters covering arguments leave their cell phones, laptops, audio recorders, and Blackberries at the door. Except in a few cases, audio recordings are not available until the end of the court’s term, although transcripts are published on the Supreme Court’s website on the day of the arguments.

Defense lawyers have long been wary of television coverage of lower court proceedings, saying that the privacy of witnesses could be disrupted by cameras and that juries could be corrupted by media reports.

But Supreme Court oral arguments – the hour-long sessions during which attorneys for each side make their case before the court’s nine members – don’t feature the witness stands, Exhibit As, and jury deliberations of typical courtroom dramas. Just the nation’s best lawyers being questioned by nine people about their interpretation of the Constitution.

“Our view has always been that oral arguments don’t present any of the traditional arguments against cameras in district courts,” said Bruce Collins, C-SPAN’s general counsel.

One person on Collins’ side appears to be the court’s newest possible member, Elena Kagan. “I think it would be a terrific thing to have cameras in the courtroom,” said the Supreme Court nominee during her confirmation hearing earlier this week.

“It's an incredible sight, because all nine justices, they're so prepared, they're so smart, they're so thorough, they're so engaged, the questioning is rapid fire. You're really seeing an institution of government at work really in an admirable way,” she gushed.

But several of Kagan’s soon-to-be colleagues (assuming that she is confirmed later this summer) say that video of oral arguments would encourage grandstanding from the participants and sensationalist soundbite-editing from news outlets.

“If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite,” Associate Justice Anthony Kennedy pleaded during congressional testimony in 2007. “Please don't introduce that insidious dynamic into what is now a collegial court.”

Security could also be a concern, according to Associate Justice Clarence Thomas. Currently, the justices live their lives in relative anonymity (According to a survey released by Findlaw.com, two-thirds of Americans cannot name a single sitting justice.)  Cameras, he said, could bring unwanted attention and intrusion into the lives of members who are, by definition, required to separate themselves from politics.  

Another concern is simply that oral arguments can be a little esoteric, to say the least. The exact definition of a “corrupting influence” via corporate general treasury funds? Discussions about the interpretation of the Footnote Four in United States v. Carolene Products?

So You Think You Can Dance, it ain’t.

"I think the case is so strong," now-retired Justice David Souter famously declared, "that I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body.”

But the question for broadcasters, transparency advocates, lawyers, and lawmakers remains: Should the public have the right to watch the Supreme Court mull over cases that could affect their daily lives?

The debate dates back at least to 1988, when C-SPAN chairman and CEO Brian Lamb wrote his first letter to then-Chief Justice William Rehnquist requesting gavel-to-gavel coverage of the court.  Scores of requests have followed; the court has always declined.

Lawmakers have weighed in as well. Former Senate Judiciary Committee chairman Sen. Arlen Specter, D-Penn., has twice shepherded legislation through the Senate Judiciary Committee that would require the court to televise its hearings.  The most recent proposal passed the committee with bipartisan support, by a vote of 13-6.  But so far, the bill has languished without a vote on the Senate floor.

The short-term prospects for camera backers look bleak. Congress may be reluctant to order around a branch of government with the power to strike down its laws. And without binding legislation, the justices would have to agree amongst themselves during one of their private sessions.

“This court is mysterious,” Collins laments. “Trying to figure out what goes on during these closed-door conversations is like reading tea leaves.”

Still, C-SPAN and its backers are hopeful that the doors of the court, over time, will inch open to eventually allow live broadcasts of its arguments.

If and when that happens, Kagan noted in her confirmation hearing, there’s one consequence that some of the justices will have to take into account.   Asked by Specter about what the televising of oral arguments could mean for the institution, Kagan deadpanned her response:

“It means I'd have to get my hair done more often, Senator Specter.”