let me read this quote. people in an open society do not demand infailability from their institutions. but it's difficult for them to accept what they are prohibited from observing. those are the words of chief justice berger in 1986 in the supreme court's decision press center price company vs. superior court. for too long the american people have been effectively prohibited from observing the proceedings and open sessions of the supreme court. think about our extra effort to make certain that the nominations process and the hearings before this committee on supreme court justices are available to every american on a real time basis. we believe that is a valuable part of our decision process. i think the same standard should apply to supreme court justices once approved by the senate when they cross the street. our bill would require televising of all open sessions of the court with one notable

exception. a majority of the justices of the supreme court can determine that the public televising of these proceedings would violate due process rights of one or more of the parties before court and make that decision and literally close the cameras. for those who argue that it is the best interests of justice in some cases, not to have the proceedings televised, we provide senator grassley and i provide expressly in this bill that that's exactly what can occur by a majority vote of the supreme court justices. supreme court decisions as i said affect everyone's lives. in a democratic society that values transparency and participation there is just no justification for such a powerful element of government to operate largely outside the view of the american people. senator leahy, the chairman, made a point earlier. senator grassley as well. the supreme court considers many important things and soon they will consider the affordable health care act. a measure which literally touches the lives of every

single american, every family, every business. i think it's important that as our hearings and deliberation on that measure were open to the public, the actual arguments before the supreme court should be open as well. on this point there is bipartisan agreement. despite many of our strong disagreements on the merits and constitutionality of that particular piece of legislation. democrats and republicans from both chambers have urged the court to permit live video and audio broadcasts of the health care reform arguments. i want to thank senator grassley and senator blumenthal particularly for their leadership in these efforts. some argue that the supreme court is already sufficiently open and accessible because the court releases audio recordings at the end of the week, makes written opinions available on the website, and offers 250 seats to the 300 million people who live in america with some preference for those who happen to be admitted to the supreme court to practice. the most striking things about

these efforts of accessibility, however, is the glaring omission of the real time audio and video broadcasts that are the predominant media tools in this modern digital age. there are some who say we should not allow cameras in the supreme court because only bits and pieces of court proceedings would be televised. and they may be taken out of context. that reminds me of an editorial comment a few years ago.sai kee prevent people from getting the wrong idea is a little like removing the poehneltings from an art museum out of fear that the visitors might not have the art history background to appreciate them. well, similar arguments have been made even when congress considered televising its proceedings. but for two decades the legislative sessions and committee meetings of the u.s. senate and house have been broadcast live and the legislative branch is better for it. the majority of states permit live video coverage in some or all of their courts. it's time the united states supreme court did the same. >> people bear with me.

i'm going to put a statement for the record by senator lee i'll stay here for all the statements they want but let me call the roll on the bill i'm gointo minute. >> well if we lose the quorum we will put it on the agenda -- certainly anybody can ta as long >> mr. chairman we can talk when you finish ecourse. i'll stay here as long as anyone wants. >> thank you. >> clerk call the roll. >> mr. kohl. >> aye. >> mrs. feinstein. >> no. >> mr. schumer. aye. >> mr. durbin. >> aye. >> mr. eh >> mr. franken. >> aye. >> mr. koonce. >> aye. >> mr. blumenthal. >> aye. >> mr. grassley.

>> aye. >> mr. hatch. >> no by proxy. >> mr. kyl. >> no by proxy. >> mr. sessions. >> no by proxy. >> mr. graham. >> no by proxy. >> mr. cornin. >> aye by proxy. >> mr. lee. >> no by proxy. >> mr. coburn. no by proxy. mr. chairman. >> aye. >> mr. chairman, the votes are 11 ayes seven nays. >> and senator feinstein, thank you for holding back. go ahead. >> thank you, mr. chairman. i have opposed this in the past. i see no reason to change my point of view. let me give you my opinion. the court does not want this. they do not speak out as a whole but justicesbreyer, scalia, rehnquist, kennedy, and alito have opposed it. so five justices oppose this plus the judicial counts of the

united states. i don't believe we should tell the supreme court what to do. we are separate branches of government. and i do not believe the justice is better because it's televised. i have seen actual situations where in my view it is worse where it is televised. i understand that there is a move to do this. this bill does have a narrow exception except that exception is so narrow that it is rarely used. i believe it opens the door to television and in my observations when this reaches the trial court you see prosecutors perform. you see defense attorneys perform. i'm sorry to see judges perform. and the simpson case was a big case in point in my view. so i have come to the conclusion that because something is

televised, justice is not necessarily better. justice depends on the law and the interpretation and application of that law. i recognize i'm in the minority but i did cast my no vote so thank you very much. >> and i appreciate this and i note that the senator has mentioned this to me previously. i would also put in the record senator grassley's statement which would follow tradition, immediately after mine in the record and senator klobuchar. >> thank you. appreciate your work on this bill, mr. chairman, and particularly senator durbin and senator grassley. we had a very good hearing on this if i could respond to my good colleague senator feinstein. we had a spirited debate about this at the hearing, many good witnesses, and a few things that i would use from that hearing

that i think would hope to respond to what senator feinstein said. first of all the iowa chief justice mark cady testified that the concerns that some people have had with televised court proceedings just have not materialized in iowa. they've had cameras in the courtroom. all of their hearings are televised. they've been able to move forward as a court and they've seen it as a positive thing. and this is true of other courts in the land. the other piece about this, and i do have sympathy for the argument as being a former prosecutor for eight years on the trial court level that you would not want to televise every trial, that there have been issues with that, that a judge should be able to make that kind of decision. but i think you're in a whole different land when you're talking about the supreme court of our land and that is the u.s. supreme court. you don't have the issues of witnesses being somehow affected by having a camera on or those types of concerns that you would have that they would somehow act differently because a camera is

on. and i would note that while some of the justices have taken the position against this i think it was former justice suter that said it was over his dead body that it would be televised. the other, newer justices, particularly justice kagoshima kagan at her confirmation hearing took the position that she thought the court proceedings should be televised and under the bill that senator durbin has drafted the fact that five justices are against it at this point in time would mean that at any one hearing they could actually vote to not have it televised. in effect it immediately would not be televised if that's what they chose to do. on the other hand, times will change and i think as you see newer justices coming on that they are going to have different views as you see by justice kagan's testimony and we have the fact that this is what i really don't get they release now routinely an audio of the proceeding a few days later. you don't get it the same day.

you might get it a few days later. maybe sometimes they do it the same day. this in fact is something that justice roberts implemented, was an improvement on what used to happen, which is that sporadically they would release an audiotape. now they do it routinely. so the step between the audiotape and the videotape and real time does not seem to be a major step to me. it is simply making it more available to people so they can see their court action. this is the supreme court of the land. you do not have the concern that you would on the trial level and i'm hopeful that eventually we will be able to watch our court on tv and that it will not simply be a few people who are able to get into that courtroom which is a public proceeding. the couple hundred people that somehow are able to have the wherewithal to get themselves in the door and get a seat. that it's not just those people that get to watch it. that the nation should be able to watch it. not just the people that can afford plane fares to go to washington d.c. thank you, mr. chairman. >> thank you.

anybody else? >> thank you. i want to add my voice, first of all, on the judgeship confirmation issue i went to the floor as did the chairman the other day to speak about the need to hasten the confirmation process not to avoid careful scrutiny but simply to fill the judgeships that are open and to ease the vacancy crisis that we have right now. and my hope is that we can do so better than we have already. second, on the measure before us, if this bill is successful i want to state my own view that the supreme court could, argument by argument, case by case, exercise its judgment as to whether or not the balance of public interest should be struck in favor of closing the courtroom in an exceptional case. but it should be only in an

exceptional case where the dangers of theatrics or histrionics outweigh the public interest in having a larger audience available and accessible. that's really the goal here, to educate and inform and, in fact, to meet the present interest that causes lines often to stretch around the block but also to inform the public about what the supreme court is doing. i am not sure that everyone in the country would agree that the level of interest in every supreme court case is the same as in the but i think there are cases and the health care case is one where it should be on a par and accessibility. you know, the danger of excesses is real.

and it's real in every case. and i can say that as one who has tried cases in state and federal courts and one who has argued several cases in the united states supreme court the advocate always has to make a judgment about whether the judge will react and the jury will react one way or another and the control of the courtroom ultimately is in the hands of the judge. as i said, when we heard from justices scalia and breyer, the danger of any one of those justices impliedly sanction iin an advocate who is before the court will cause great caution timately will result in the kind of self-discipline that i think will avoid the kinds of dangers that we've been discussing. and if i can just take senator durbin's analogy.

i want to associate myself with his remarks as well as the chairman's and ranking members, all of them very important and powerful remarks. it's not just that we are closing the art galleries or the museums because the public may not understand the art. it's that we fear some danger to the art, itself. and the whole purpose of art is to make it accessible and available to the public. why else do paintings or sculptors? the same is true in many respects of our democracy. the fear that public access will somehow harm the process runs exactly counter to the process itself. thank you for giving us this opportunity to vote on the bill mr. chairman and for moving it. >> well thank you. and of course, senator, you are attorney general of your state and like many others here you've had a chance to both argue trial

and appellate cases. i think while senator feinstein is still in the committee room she made reference to the simpson trial. i totally agree with her. it became a media circus. i am highly critical of the judge who did not maintain a courtroom the way he should. but i would note there is a huge difference between a trial and an appellate argument. appellate argument you have a limitation of time. you have a very structured thing. i think the appellate litigants it would be hard to find one that wants to grandstand an appellate argument. and i've argued an awful lot of cases to the appellate courts.

it just does work. in one you have a very limited period of time unlike the open ended aspect of a trial. and i think we're dealing with different things. but i think that there is as senator durbin noted the part of this bill which allows a vote to close on a specific thing and i imagine there may be such cases, may be very rare, but there may be such cases. i've wrestled with this idea over my years here in the senate. but i am afraid when you have so much distortion about what goes on in our government by some of the media, some of the blogs, and so on, where you help the most is to have as much openness

as possible to as many people as possible. i am constantly surprised by the number of people that travel around my state or to the airport or another state who come up and talk about some hearing they saw on c-span. it may have been a very, very routine hearing and i thought, why would anybody be interested in this? and then find people who really are. at a time when people feel more and more alienated from their government, i agree with senator durbin, senator grassley and the others, open the government up more. open it up more. let people see what is going on. and i was here when the debate was made first to have radio broadcasts of the senate. i believe that may have been the

panama canal debate. senator durbin suggested it was telegraph. i remember samuel morris not only painting the scene but arranging for the equivalent. i would say something else but we are in an open session. and maybe on tv. but that, you know, the senate didn't collapse. then we went to television and there were many who didn't like the idea. and there was some grandstanding that went on and there always will be. but the country is better for it. and when we've had serious and major debates, arms control treaties, whether to go to war or not, people are glued to the sets. you ought to know what the people who are representing you and that's whether it's in

courts or doing and saying. more openness the better off we are as a democracy. if anybody e has anything to add then we'll stand in recess and i thank you all. >> well, dick,

the senate judiciary committee meeting in a much

shorter session than we expected marking up legislation proposed that would require television coverage of u.s. supreme court proceeding. justices breyer and scalia have been before the committee and subcommittee and asked about the very same question. here's what they had to say recently. >> i was very impressed and moved by your explanation as to why you think it is so important for the public to understand and appreciate what judging is and what role it plays in our system, and i agree with you totally that not only is there the need but there now is the lack, really, of that understanding. and so i guess i say as not only one who's argued bus also as a former law clerk who sat through a year of arguments and learned so much about the system in that process, why not open it to video recordings? why not, in the federal courts,

give the public the benefit of seeing it firsthand in your court and other federal courts and so appreciate, really, the quality as well as the diversity and the extraordinarily often excruciating difficulty of what you do? >> i'll start. senator, when i first came on the court, i was in favor of -- you're just talking about televising the arguments, right? >> correct. >> not the conference. you know, the brilliant supreme court they -- the brazilian supreme court televise their conference. >> i would never think of it. >> nor would i. i was initially in favor of televising but the longer i'm there the less good idea i think it is. forward is we want to educate the american people about what the court is and whatnot. now, if i really thought the american people would get

educated i'd be all for it thro our proceeding gavel to gavel, boy, would it teach them a lot. they would learn rear not most of the time looking up at the sky saying, should there be a law to this or that. people would never again come up to me and ask, as they sometimes to, justice scalia, why do you have to be a lawyer to be on the scream court? the constitution doesn't say so. no. but 99% of what we do is law. stuff only lawyers can do, and if the people would learn that it would be a great piece of education, but for every ten people who sat through our proceedings, gavel to gavel, there would be 10,000 who would see nothing but a 30-second take-out from one of the proceedings, which i guarantee you would not be representative of what we do. so they would in effect be given

a misimpression of the supreme court. i am sure that would be the consequence and therefore am not in favor of televising it. >> but it would for high school students or even middle school students and for the general public who were interested in and important and pertinent case provide a means for them to see what -- right now only a very limited audience can view because of the size ever the court? >> but for those who are interested in it, for those intellectual reasons, surely the tapes are good enough. >> well, the tapes, with all do respect, and i understand your argument, don't convey in the same way with as much interest the kind of debate back and forth, the visual sense of the action in court, and i know and you know, really, how dramatic

it can be. >> why don't we sit there like mimed sticks on chair's pz there's not a lot of visual motion. there isn't. it's mostly intellectual motion. >> it certainly is gripping if your answering the question. justice breyer, do you have a different view? >> sort of. a little. but i think we're conservative, and you would be, too, if you were there. the -- the court has lasted, the country, well and served the country well over a long period of time. we're there for a short time. we're trustees and we don't want to make a decision that would be non-reversible and hurt the courts. start there. and sometimes when we had the terms limit case out of arkansas, i just wish people could have seen that. it was such a good case. you had jefferson and story on one side and madison and

hamilton on the other side and it was the term limits. and what you saw is everything evenly balanced with the president and -- i won't go into the case, but if they could have seen that akrot the country, people would have been able to see in that oral argument nine justices struggling with a really constitutional question that would have been good for the court and everybody. all right. so what's the problem? well, one problem is that we're a symbol and if it were us in our court, you could probably be in every criminal case in the country, and you would get rid of what? what if we do it with jurors? about what at the criminal witnesses, et cetera? you don't know what happens with symbol. or would people come up with a misimpression. namely, oral arguments, 5% of the case. 3% of the case is done in writing. they don't see that and more importantly, people relate to

people. you relate to people, i do. when you see them, they're your friends or not your friends or whatever. but we're making decisions that are there to affect 309 million people who aren't there and we have to take those 309 million into account and will that come across? and then there is the problem mentioned, which is, quite right, you can make people look good, or you can make them look bad, depending on what 30 seconds you take and it's already personality and let's not make it worse. we wear black robes because we are speaking for the law, not for ourselves as individuals, and that's a good thing. so add those up and you say, i don't know. i would like to know mo really . there are places that have it and don't have it. there are courts that have it and others to don't have it. california in some situations, 100 different situations in respect to that. why can't we get real information not paid by anybody

that has an interest in this? pew or some of the foundations and see what happens to attitudes, judicial attituddtti and to others. what you're getting no other wa everybody's doing that and it will just seem weird what we're doing now and it will all change, but before that time i think when it's -- a little boring, but i think information is something that would make me easier, and until i become easy about it. until we become reasonably conventioned that won't hurt the instituta ion, ynservative reac. that's what i think is the truth. >> senator, this may be unfair are to put this question to you, since you're such a youngster here, but do you really -- >> that's the best thing said about me for a long time. >> do you really think the process in the senate has been improved since the proceedings have been televised? >>