tv National Freedom of Information Day Discussion on Federal Courts CSPAN March 9, 2019 4:04am-4:46am EST
>> next, a look at evers to it -- efforts to expand access of journalist to the federal court system. from a national freedom of information day conference, this is 40 minutes. >> i think we are ready to begin. my name is gabe roth. i'm the founder and accepted of the only nonpartisan group in the country who advocate for greater accountability in the federal courts, primarily in the u.s. supreme court. i want to start by thanking the freedom forum institute, freedom of the press, open government, for giving me the opportunity to not we canwhether or
use it to open up the federal court system. i know that powerpoint presentations are generally very lame and i am not that tech savvy, but i didn't want to do a panel because we have done a few of those already and they let me do whatever i wanted so here we go. that during this presentation, you will laugh at least once and learn two things. second, i find it is pretty ironic that i run a protracted bear and see group and i'm not good at technology but you will be your -- bear with me. i know that i am standing here as a humble nonprofit employee but i was once a tv producer at a local station in florida trying to get information from public officials. for a time, i was in charge of the new york state agency's research and responses. i hope we can all relate on some level. when the federal
government celebrates by redacting one page of emails with a marker so thick and so black it could redact eight whole pages, kind of like the -- i want tocle ask a question that you have been wondering since i got up here. can the freedom of information act bring more sunshine to the supreme court and how can we as citizens push the justices in a more transparent direction? i don't have specific cancers but i am looking to you. hopefully there are people in the audience right now who have thoughts and ideas. i have more to say and whatever you respond back accurately reflects this. what the want to know more about the federal courts? anybody? or the supreme court? why are there no cameras in the supreme court or any federal district court's? anything else? >> live streaming audio.
no livey is there streaming audio or send a audio? that is a good -- same day audio? >> how they decide on fencing. gabe: how they decide on fencing. exactly, what have they been, where have they been, who are the people they employ? what is the process of hiring clerks? what is the process of deciding which of us are the nine sitting. those are the questions i hope to answer in the rest of this presentation. oh no. ok. a few years ago in february, i went to grand central station and told people that we are not televising the super bowl. --is not being televised kind of as a joke or point as
you will see -- ploy that you will seem as video. reporter: did you hear the news today that the super bowl will no longer be televised? >> what? hold up. sir?ter: excuse me, can i get your reaction to the breaking news today that the super bowl will no longer be televised? >> what? reporter: only people who buy tickets to be in the bowl get to be -- see the game. >> that's ridiculous. no way. >> people are going to freak out. 20 you talking about, come on. reporter: do you think football fans will be upset? >> i think they will be upset. a lot of people will be upset. reporter: the super bowl will be on tv but something might be more important than the super bowl and not be televised. the supreme court. they make the most important legal decisions in our country
and decide whether gays and lesbians can marry each other no matter what state they can live in. they are going to make major rulings on obamacare that could affect millions and the justices are paid with our taxpayers but unlike congress, we don't get to see their process. only people in the courtroom can see this process at work. house haven see the their debate, senate in their debate, but we can't see the supreme court? >> not even on c-span ever? ever? reporter: no. gabe: that's right, not even on c-span. that is pretty crazy, right? something that important, we don't get to see or participate in. we only get to see if we are one of the lucky 300 people in the courtroom on any given argument day. there are about 40 argument days a year depending, they usually take 60 or 70 cases that are
spread out across a year and video is not allowed. you heard from the public. let's hear from one of the justices about what their thoughts are. let's take a listen. nope. yes. ah, sorry. i'll get the hang of this. -- you hit a second. -- give it a second. this is justice scalia. >> where about out of time. i need to get the latest thinking on television in the court. >> television in the court. reporter: congress has resolutions it passed in ordering the court to go on television. why are you so against it? justice scalia: i was for it when i first joined the court and switched and remain on that
side of it. i am against it because i do not believe, as the proponents of television in the court assert, that the purpose of televising our hearings would be to educate the american people. that's not what it would end up doing. if i really thought it would educate the american people, i would be all for it. if the american people sat down and watched our proceedings gavel, they would never again asked, why do you have to be a lawyer to be on the supreme court? the constitution doesn't say -- no, it doesn't say so but if you know what our real business is, if you know we aren't usually l, shouldting our nave there be a right to abortion, should there be a right to -- that is not what we are usually doing. we are usually dealing with the
internal revenue code, with patents law, all sorts of dull stuff only a lawyer could understand and perhaps get interested in. if the american people saw all of that, they would be educated but they wouldn't see all of that. carry itutfit would all, to be sure but what most of the american people would see would be 32nd, 15 second takeouts from our argument and those takeouts would not be characteristic of what we do. end of thats the takeout and we will skip that. actually, if we could have the people in the back move, since i saw a mouse cursor, moved to h52 of this video. a member of congress and the response to justice scalia. >> i was thinking about this question, the movie "mr. smith of -- goes to washington" was
released, representatives didn't want it to come out because it made them look bad. representatives in the soviet union didn't want to shown there because it made us look so good. there is a beauty in the history of the supreme court had what takes place there and i think about what it would mean that generations to come could watch the argument that took place in brown v. board of education or gideon. extraordinary moments that changed history and made our country a better place. watching at least 2% or part of that, i think, is very important. i think what you do is absolutely critical. i think there is a beauty to our system that is unparalleled in the world and i would like my kids to watch it. gabe: both those soundbites are a few years old. this is a debate that still rages today. yesterday, justices alito and kagan were talking about the justices budget.
every gear, they go to capitol hill and talk about, present their budget to the federal -- to the legislative branch, ask for about $100 million a year. for a while, it was done in secret but luckily we were able to get them before the committee in public this year. the question was asked and justice kagan was lamenting, if only the american people understood that we were an institution that worked. ally simplere way for the american people to see that. if you go to the court come you alito whon and an were appointed by different presidents and coming together and agreeing on more things. that would be a good thing. congress has cameras, and the debate in congress isn't great these days. for thoseto point out who believe tv coverage is one
of the reasons congress has descended into the contentious gridlock body it is today. if the supreme court -- you only have half hour -- half-hour aside. there are no witnesses, jury, no opportunity for grandstanding. the justices you are presenting for never have to run for office so no one will take the soundbite and use it as an attack ad. the cameras ine the courtroom versus congress debate a little like of apples to oranges. if you want to see the supreme court live, this is what you have to do. i did it again, didn't i? i thought it would start. thank you so much. ♪ >> i'm here with gabe roth, the executive director of fixed the court.
we wanted to see oral argument so we had to stand in line. it is pretty early. 5:15 and i've been here since 4:30 and hopefully, we will get in. 100% if weally know will. we are pretty early, so we have a chance. >> we are not sure of the process and that is why we are here. posted as weyou wait in line and hopefully, we will get in. ♪ gabe: so the process is, you've got to wake up at the crack of dawn, get down there, you have no idea if you will get in. it is a real challenge to even be part of the process if you want to be part of the process and happen to be in d.c. i live in brooklyn. it is not easy to get to the supreme court. i think transparency, cameras come alive and same day audio would help that. there is another reason justices
are against cameras and it is a , i promise.to foia problems, and the primary point for me in the camera and the -- in the courtroom issue has been that regular appearances on tv could mean significant changes in the way my colleagues can conduct their lives. might anonymity is already gone -- my anonymity is already gone. it has already affected the way i can conduct my own life. me --imary point for gabe: sorry, that was getting a little repetitive. i'm just not good with this clicker.
regardless, the point he is anonymityhis an is gone. such a word point, as a public figure, a member of the supreme court. i get it. likes shoppingor at trader joe's and justice kagan likes walking around her neighborhood and not being recognized. one of the older white d one of don't remember, them was walking down the steps of the supreme court and a tourist was about to snap a photo and the justice, one of the old white dudes was like, you need me in the photo? they said, we need you to move. they didn't know he was a justice. respects, butsome there are concerns about security, which is what i want to get to hear. -- to here.
we shouldn'tmean have openness and transparency and justices on cameras, but that we have the executive ranch and judicial branch. i personally think you can't be an advocate for greater transparency in the federal courts without being an advocate for greater judicial security. that is where foia comes into play. let's get the headlines i have up there. sadly, the security for the justices is more lax than for the president, vice president, or speaker of the house. ttacked breyer a in the west indies, a house robbed. -- mode inas robbed 2004. in 2004.d security for judges came into sharp focus after the death of justice scalia.
in washington, d.c., they got the supreme court police -- you have the capitol police, secret service, some supreme court police department on the other side of the capital so they are heavily guarded there but if they leave washington, d.c. and are on a public trip to visit their grandkids or go on a talk or go when a hunting trip, they have to opt in to get u.s. marshal protection. opt forscalia did not protection on the ranch in west texas where he passed away, which is why it took hours for deputy marshals to be notified and scramble to the ranch where his body was lying. i was curious about this so i sent a foia. i got this. it says, "justice scalia had been planning on taking a personal trip this coming
weekend. originally, we did not think he would need anything from the marshals. now he has asked if they can assist him in houston." it is redacted a bit because of foia. flight details are below. further down, "he will be traveling with a gun." this is how security works when justices travel around the country. request, a few months after justice scalia died in 2016, i didn't just want to see are the justices being protected? what was going on in texas? why did no one know he had passed away? there were all these crazy -- similar with justice ginsburg, there were insane rumors going around justice scalia's death. nothing nefarious, this was a 79-year-old in bad health, but there is a way may be to use foia to bring the temperature down and reduce the prevalence of these conspiracy theories
saying there is something the paris at work. , he justs nefarious didn't have support. 2015, and itly didn't have media status at that point so they quoted an exorbitant fee, so i reduced it to july 2015 because july is the first month of the justices three-month recess. -- mode in which they travel most is july. i got this in response. the is a page from a report marshals typically fill out pretrip when they are accompanying a supreme court justice. under part six, all the blacked , a, underreported threats chunk has been redacted. thes terrible, not for
redaction but because under the reported threats, there are threats. i wasn't sure what i would get, the level of detail. i obviously didn't want any personal information. there is a point in time where i got personal information from a justice and female the officer and said do it again, i don't want this information, not my business. not this foia, a different one. it was a state-based one. they did it right, reported threats should be blocked out but because there are reported threats and extrapolation i don't need to go into, it narrows down, it is harrowing. past coupleover the of years, we have asked the house appropriations subcommittee that deals with the urgent -- budget to make sure they are funded for security. we learned the justices have hired an outside security firm to do a top-down review of their protocols.
they didn't go into much more detail than that, which you wouldn't expect them to, but i hope it is not just talking about security in the building but also security when they travel. this is a scary time. there was a congressional shooter recently. there was a man from maryland, the coast guard officer who had searched -- in addition to a stockpile of 90 weapons and a spreadsheet of people he was looking to harm, he also searched online are supreme court justices protected? but thisittle weird, is an example of where foia has done its job. through it, we learn valuable information related to the request that should ever main private was kept private. at the highest level of government regard -- regarding changing policy, mainly that justices do not have the protection they need. we are also concerned to fix the court about how supreme court
justices are serving longer than ever. justices who left the bench before 1970 served 15 years on average since 1970. they served about 27 years on average, almost double. there are a lot of issues dealing with aging that we want to be cognizant of -- once every 25 years in the history of the court, a justice has experienced cognitive decline. we are not trying to push anybody off the bench but we want to make sure justices have the resources they need and the rest of the federal judiciary have the resources they need to ensure their cognitive abilities are maintained as they age and continue on their service. this is another way in which of. was useful -- sort you can't foia scotus. mexico,foia scotus of
but not our scotus about the health of justices. trump and clinton have some weird health things going on. hillary fainted during a 2017 .vent and trump had something i did work with a reporter at , who is also a valuable member of the reporters committee and he asked the justices individually about their health and he got a single letter back from chief justice roberts. it stated, thank you for your inquiry about my health and the health of my colleagues. that is not my justice roberts voice. i don't know why a change tones. you can expect to see an able and energetic court when we reconvene. the public relation office will continue to provide public health information when it arises. first of all, they have. since that letter from chief justice roberts, they have sent
out press releases about sodomite or's health -- about justice sotomayor's health, justice ginsburg. justice ginsburg is turning 86 friday, breyer is 80, kennedy was in his 80's when he retired. this is a concern to all americans that we want a fully functioning supreme court. i was interested about this topic in general. scotus isn't helping, what can i do with regard to foia? two thinks. -- things. i went every circuit court in the country. creating a judicial wellness initiative would be helpful you can figure out some resources for justices that age. the ninth circuit has been doing this since 2000 but i have been pushing other circuits and half of them have judicial committees which is great. foia,her thing, i sent a
to the defense health and ask themn look, you've got article one judges, military judges, air force pilots that have an age requirement, the joint chiefs of staff that have age and terminal requirements. are there comprehensive policies in the department of defense that help those individuals who are aging age gracefully or check their cognitive decline? i haven't got a response on this yet, but it is interesting the supreme court thinks it is in this blackbox and you can see in, but there are parallels government and i want to utilize those to foia to see what resources can be brought to bear that exists somewhere in government that could be brought help them ages to gracefully. finally, i want to talk about how foia can be a useful tool for judicial nominations. judicial nominees in this and previous administrations often
have government service under their belt in their work histories. many continue to work for public entities. several individuals on trump's scotus shortlist were or are teaching at public law schools like michigan and colorado. there are many foia opportunities and in may 20 7 -- in may, i asked for all the brett kavanaugh's independent counsel documents. with regard to the white house documents, those were placed ,nder presidential records act not foia exactly and there is a 12 year window which is pretty tight. in the bush administration, you had to activate it. after september 11, president bush decided to activate the 12 year window and justice kavanaugh worked on that memo. it is funny how that worked out. know or have a lot
of the documents until january 2021, which is the law. did, cav nau worked on d.o.j. documents and i'm still working on getting documents. this is just one that i pulled out of the air. this is an e-mail up here, you can't see it. this is an e-mail where he says some goofy things about t the clintons. but the most interesting thing is redacted on i guess the right nd the thing there says the counsel's office memo while short contains some helpful information on a variety of issues.
then rachel replies those memos ke it sound like they had 20 in the office. i don't know why i picked that document. i could have done better but again i'm going to blame this on my poor power point skills. increasing the transparency in the third branch is not easy. all these side issues, but overall it's really like you've got to come at it at different angles and be creative. i'm going to go through this list. look at the with ways the supreme court and judiciary don't stack up in terms of oversight.
there's this office of legal counsel at the supreme court but nobody really knows what it does. when the justices -- they're also not required to follow a branch-specific code of conduct. and they can earn outside income a heck of a lot easier than people in either the legislative or executive branch. they refuse to guest and they can wait almost two years to report their stock ransactions. the list goes on. remember, the only oversight for the courts constitutionally is congress. how does congress in the 21st century work? crisis to crisis. there's always going to have to
be some crazy crisis for things to get going. things are bad at scotetuss but because the real action from the hill may not come until it's a major crisis, doable, it's hard. you have to get creative, you have to play nice and really talk about there's no political gains to be had, we're -- i could say plenty of things about all nine justices. so i hope that you took
something out of it. if you have, some questions, i would be happy to answer at this time. thank you. [applause] > was foia always your first resort? >> so that's a really good question. i think it depends on the topic. for the judicial wellness committees i sent a letter to the administrative office of u.s. courts saying there's this model in california, they've got a buddy system, experts coming in talking to the the judges about how to identify signs of aging. t's do a federal jishbrywide wellness committee.
o i wrote each executive committee and did that. to be honest i've been thinking about that for a wile. that was a tactic that was used, i want to say ten years ago by an organization. i respected it but i didn't want b to be seen as being partisan because i don't care which justice goes where as long as they're not flying on the plane of a litigant. so it was always in the back of my mind that i think that there's -- for every ten letters i write i get one back. so i feel like the law of diminishing returns lets me get creative. it was like, ok, scleia was technically on a private plane, so he flew from d.c. to houston with the marshall and from houston to where he passed away outside of el paso without a
marshall on a private plane. so i said, look, this is -- u.s. marshall service is part of d.o.j., it's worth a shot. so that's been around for four years. at the start i wasn't such a foia nerd but over the last two gore such and kavanaugh, because they both workt in the government, what re they writing about?
>> i'm a journalist. you mentioned the supreme court of mexico but are there any state courts that are any better? >> there are. i've got to remember where they are on the spreadsheet. florida is pretty decent. there are some states where you're able to send foias about certain actions in the jish rhode island, whether their nominating commission or past writings. the short answer is yes. i don't recall where exactly. i know the national center on state courts has resources. but that's something that's really important. whether it be cameras in the court, ending lifetime tenure, conflict of interest rules, a lot of these very pro and
modern transparency rules are being activated at the the state courts. which the justices don't like to take advice from anybody, but to be honest i think that's a positive cruisible of democracy as it's been called and there are a lot of transparency forward organizations. we have the chief justice of the ohio supreme court a few years back at an event that we did at the press club and -- chief juss the tiss o'connor. they had cameras in the courtroom, brought them in. one day a lawyer said something that was ridiculous. i put him in his place and there was any problems after that. so i the do think that states could be a good example for transparency opportunities on the federal level. you mentioned the same sex
marriage issue. we were 45 through 48 in line for 50 guaranteed spots and that was for day two. so that's fun. but my question is more about same day audio because i know i've heard some of the justices speak when i was in law school and they all don't want this. but the same day audio seems like such a -- an easy fix. what's the hard push there since they've already implemented it in high profile issues? ? >> it's not. two years ago, they accidentally released same day audio because it's the the first argument of the year, first monday in october and it was about some railroads like a foreign -- so the details aren't that interesting or
important but you go to supreme court the.gov that afternoon nd it with with was there. for the most recent time in which they've allowed same-day audio they've done it 27 times since 2000. bush v. gore being the first. or palm beach board of whatever v whoever was the first. the most recent was trump v. hawaii and the travel ban. that audio came out 42 minutes after the arguments ended. they do pump live audio elsewhere in the building so if u are in the lawyer's lounge or press office. so in terms of pushback, grassley and leahy, senators on the judiciary committee, cowrote a letter last year saying with we get cameras let's do same day audio and chief justice response was
none. he had no response. we are going to try to get same day audio. i do think we'll get there eventually. i think the problem that i have with same day audio it's saying those 27 cases are the 27 most important cases in the last 19 years. maybe for them but not for me or you. so by singling out and saying this is the case we do same day audio -- maybe the other -- making the other cases feel bad. so i think we'll get there. i do think we'll get there. i think that, look, there's two circuit courts that do live audio and every other single court releases audio within 24 hours. this is something that i tried to get the justice to talk about yesterday but they just wanted to talk about cameras. they were asked three or four times by the panel of the financial services and general government ske yesterday about
cameras and i'm, like, looking at them in the back trying to mouth asked about audio. it didn't happen. if you've asked each justice individually, john paul stevens loves same-day audio. he's in favor. but for whatever reason the camera question is always the first thing that people think of and b i think -- i think with we'll get there and i hope it's some day soon. it would do a lot to restore public trust in the institution. with that, thank you so much for your questions. thank you for sticking around. really appreciate it. >> the war in the pacific, a cure for measles, and the life and legacy of dwight
his average approval rating while he was president for 8 years was 65%, average. the next president who comes closest to that was bill clinton at 55% and then ronald reagan at 53. >> with watch american history tv this weekend on c-span 3. sunday night penn state history professor discusses her book lady first. >> i was so astounded by all the stuff she did and the way she exercised power.
she wrote letters to a supreme court justice and members of congress that were completely confident, 100% about politics, and were not noticeably different from a letter than a man would write and they wrote ack to her in the same vene. >> obon thursday former democratic colorado governor formerly announced his run for president in denver. this is about 30 minutes.