President Trump and the Courts: the advantages of transparency

With the increasing tendency of certain politicians and journalists to disparage the integrity of the courts, and in particular the independence of the judiciary, there is a growing need to make what happens in court more and more transparent for the benefit both of the media and the general public.

Vivid examples of some quite new developments in this field have been the four-day live video-streaming of the arguments in the UK Supreme Court in the Article 50 case, and last week’s audio-streaming of the argument in the case concerned with President Trump’s controversial immigration ban.

Here is an interview in a US paper “The Recorder” last Friday with the former chief judge 0f the US Ninth Circuit Court of Appeals who believes as passionately as I do about the importance of all this.

Article in the Recorder, 10th February 2017

Alex Kozinski, the former chief judge of the U.S. Court of Appeals for the Ninth Circuit, has long been an advocate for transparency and public access to court proceedings. Kozinski was one of the driving forces behind the court’s push to make audio and video of oral arguments available online.

Those efforts drew a lot of attention this week when, according the court, more than 137,000 people listened to the Ninth Circuit’s online stream of a telephonic hearing over President Donald Trump’s travel ban.  Even more tuned in via a feed made available to the media by CNN.

On Friday, a day after three Ninth Circuit judges left in place a ruling blocking the executive order, The Recorder caught up with Kozinski by phone to get his thoughts on the size of the audience and the prospects that other courts might follow the Ninth Circuit’s lead in streaming arguments.

Q.  What’s your reaction to hearing about so many people listening in on a telephonic hearing by a motions panel?

Kozinski: That shows that we are doing our job. We have a commitment to be transparent to the public and it looks like the public is appreciating it.

Q.  What do you see as the value of people tuning in at this particular moment?

Kozinski: Well, we’re a public institution, just like other public institutions. I think people expect to be able to use technology to participate directly, if only as spectators, in what public institutions do. Some of what [the court] does is in secret, obviously—the deliberations, writing opinions, and so on.

But public hearings should be truly available to the public. Technology allows that to happen. We have a commitment at the court to use technology to the greatest extent possible to allow the public to participate. And it’s very gratifying to know that, in fact, it’s being taken advantage of. The public, in fact, uses the service. I think we’d feel a little disappointed if we had a show and we made it available and no one bothered to listen.

Q.  I’m assuming that there were a lot of people listening to their first federal appellate argument tuning into this stream. What do you hope they took away from it?

Kozinski: Well, I would hope that they would have been able to follow the proceedings. It’s not easy because we deal with such arcane concepts as standing and constitutional issues, regulatory issues. So it’s not always easy for the public to understand.

But some of the public, like those trained in law, would understand what we’re doing. And others, I would hope, would be able to recognize that we had thoughtful, practical deliberation and the judges have prepared for the give-and-take with the lawyers and the decision when it came out was the product of careful analysis by judges who actually have thought about the case.

Q.  Do you think this week’s events might change the minds some of your colleagues on the federal bench who are less convinced about the merits of letting cameras and recorders in the courtroom?

Kozinski: I would hope so. I don’t know which way it would change their mind. I hope it would be positive. But I think there are some who­—this was an issue in our court—there are some who [think] when a lot of people listen in there’s the possibility of distortion and people pulling things out of context.

But I think it’s just the opposite that’s the case because people can always look back to the recording and if somebody misrepresents what we said or did, people can check it. So, nobody has a monopoly on information. The fact that a lot of people listened to it means that it’s much harder to fool people into [believing] something that’s not true when so many people have listened to what happened and can listen again.

Q.  Has this whole experience shown people what the Ninth Circuit is capable of—judges in Hawaii, Arizona and California coming together to get a case briefed, argued and decided with a 29-page decision in a matter of days?

Kozinski: We’ve been able to do that for some time. What we haven’t been able to do is display it, to make it visible to the public.

When I joined the court, we were still recording [with] tape recorders. I remember having a telephonic hearing in a death-penalty case in the year I was appointed­—in ’85 or ’86. The ability to do these things has been around for a long time, but the ability to actually display it in real time has not. As that became available and feasible, I thought it was our responsibility to implement it.

I might add that one of the advantages of having a large court like ours is we have surplus economies of scale created by the fact that we have a lot of judges. We wind up being able to get the best technology, to get the best equipment, to get the best personnel devoted to this. A smaller court might not be able to do it, just might not have the resources.


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