In Senate confirmation hearings, Supreme Court nominee Sonia Sotomayor said she favored camera access in the high court but said should she be confirmed she would act with circumspection in making her views known to the Court. -DB
First Amendment Center
Analysis
July 16, 2009
By Tony Mauro
WASHINGTON, D.C. — If the Senate confirms Sonia Sotomayor as the next justice on the Supreme Court, she may become the most unabashed supporter of camera access the justices have had in their midst.
In questioning over the last two days from the Senate Judiciary Committee, senators have asked Sotomayor several questions related to the First Amendment and access issues. She has been circumspect in response, as with any other legal topic she has been asked about.
And on the cameras issue, she specifically stated that her respect for the Court’s collegiality would dictate how and when she expresses her views on cameras to her new colleagues.
But she still dropped enough hints in her testimony that it would be fair to conclude that she would join the Court as a supporter of camera access who won’t be reluctant to say so when the time is right.
For example, when on July 14 Sen. Herb Kohl, D-Wis., asked her views on cameras, Sotomayor said, “I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”
Her current court, the 2nd U.S. Circuit Court of Appeals, allows camera access under rules that have permitted individual federal courts to do so, in spite of the Supreme Court’s longstanding resistance to the idea.
She then cautioned that in the interest of collegiality, “I wouldn’t try to come in with prejudgment so that they thought I was unwilling to engage in a conversation with them or unwilling to listen to their views.”
Kohl, who supports cameras in the Court, interrupted impatiently to ask, “How do you feel? … Think it’s a good idea?”
With a smile, she replied, “I’m a pretty good litigator, or I was a really good litigator, and I know that when I worked hard at trying to convince my colleagues of something after listening to them, they’ll often try it for awhile. I mean, we’ll have to talk together.” She added, “I would be … the new voice in the discussion. New voices often see things and talk about them and consider taking new approaches.” Kohl seemed satisfied.
Yesterday Sen. Arlen Specter, D-Pa., who has introduced legislation to require camera access, returned to the subject when it was his turn to ask Sotomayor questions.
After forcefully reviewing the arguments in favor of allowing cameras, Specter asked, “Shouldn’t the American people have access to what is happening in the Supreme Court?”
Sotomayor responded more directly. “As you know, when there have been options for me to participate in cameras in the courtroom, I have. And as I said to you when we met, senator, I will certainly relay those positive experiences, if I become fortunate enough to be there to discuss it with my colleagues.”
She also noted that the Court, “because of this issue,” has taken other steps toward public access, such as same-day release of oral-argument transcripts. “It’s an ongoing process of discussion,” Sotomayor concluded.
Of course there’s no telling what will happen once Sotomayor becomes immersed in the Supreme Court’s culture of invisibility. Justice Samuel Alito Jr. at his confirmation hearing in 2006 revealed that he too supported camera access when his court, the 3rd Circuit, voted on the issue. But since then, Alito has indicated that he now believes that the Court’s other measures, including the same-day transcripts that Sotomayor mentioned, have given the public adequate access without going all the way to cameras.
Other First Amendment topics Sotomayor has addressed during her Senate testimony:
Free-exercise clause: Sen. Ben Cardin, D-Md., asked her about Ford v. McGinnis, a 2003 case in which Sotomayor ruled for a three-judge panel that a Muslim prison inmate deserved a fuller hearing on whether prison officials legitimately denied him access to a religious meal marking the end of Ramadan. She said that the free-exercise clause is “fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the state from establishing a religion, and that we have freedom of expression in speech, as well.”
She added that in the decision she was “applying very important Supreme Court precedent that said, It’s the subjective belief of the individual. Is it really motivated by a religious belief? It’s one of the reasons we recognize conscientious objectors, because we’re asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual’s religious belief and then look at what the state is doing in light of that.”
Hate speech: Sen. Charles Schumer, D-N.Y., asked Sotomayor about Pappas v. Giuliani, a 2002 case in which she wrote a dissent that sided with a New York City police officer who had been fired for circulating racist materials from his home.
“Nobody, including the police officer, was claiming that the speech wasn’t offensive, racist and insulting,” she said. “I don’t think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people’s rights to engage in hateful speech.”
National security: Sen. Dianne Feinstein, D-Calif., asked about Doe v. Mukasey, a 2008 decision in which Sotomayor joined a decision that struck down a part of the Patriot Act that prohibited recipients of national security letters from telling the public about the letters. National security letters are a form of administrative subpoena that government agencies have served on companies and individuals to gather information, without the requirement that a judge issue a search warrant.
She said that because of deference to the executive and legislative branches, especially in national security matters, “We had, as an appellate court, to be very cautious about what we were doing in this area.” She said that under Supreme Court precedent, “if the government was going to stop an individual from speaking in this particular context … the government had to come to court immediately to get court approval of that step… . We are a court that protects the Constitution and the rights of individuals under it and we must ensure and act with caution.”
Campaign finance: Sen. Russ Feingold, D-Wis., co-author of the McCain-Feingold campaign-finance law, asked Sotomayor about the Supreme Court’s decision to hear arguments in September about the constitutionality of the law’s ban on corporate expenditures in election campaigns.
Sotomayor, who is viewed generally as a supporter of campaign-finance restrictions, demurred. “If I were confirmed for the Court, it would be the first case that I would participate in. Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I’m going into that process with some prejudgment.”
Copyright 2009 First Amendment Center