Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Unsurprisingly, as the official representative of the federal court system, Judge Campbell took a more conservative approach to the future of videoconferencing. His testimony stressed the work that the federal courts have done in response to the coronavirus pandemic, and reiterated the judiciary’s appreciation for Congressional funding of the courts through the CARES Act — and the hope that the courts’ request for an additional $36 million in emergency funding would be granted. While acknowledging that “it is absolutely true that we [the federal courts] are learning from the pandemic,” Judge Campbell also toed the party line, stating without further explanation that longstanding Judicial Conference policy prevents broadcast of district court hearings

The other witnesses were far more aggressive in the support of expanded access through video. For parties and litigants, remote access increases participation and the sense of procedural fairness. Chief Justice McCormack noted that in high-volume dockets in her state, remote access allows more parties to participate. Moreover, participating remotely actually increases the sense of fairness for self-represented litigants, since they visually appear equal to the judge and opposing counsel on a Zoom screen. Judge Fogel concurred, noting that the data show that some people are happier to appear virtually.

Livestreaming hearings also drew strong support from McCormack, Fogel, and Wasser. Wasser noted that fears about lawyer grandstanding had not materialized at the state level, where livestreaming has gone on (in some localities) for years.

The witnesses rightly acknowledged that certain types of proceedings are simply not appropriate for livestreaming, or for that matter any sort of remote access. Sentencings, hearings involving the right to confront witnesses, and other complex proceedings strongly benefit from the solemnity of the courtroom and the additional privacy checks that come from being in a contained space. At the same time, the witnesses confirmed that most hearings are very amenable to remote proceedings and livestreaming. Bankruptcy proceedings, high volume state dockets, and hearings involving litigants who live far from the courthouse all benefit from the use of technology.

A major, albeit understated, question throughout the hearing was whether Congress should step and guide the federal courts toward greater transparency. There seemed to be little patience among the Committee members for the Judicial Conference’s increasingly anachronistic ban on the broadcast of district court proceedings. Ranking Member Hank Johnson (D-GA), who chaired the hearing, emphasized that open justice means public access, and told the witnesses that the courts were “only limited by [their] imagination” in making funding requests for technological advancement. Representative Steve Chabot (R-OH) again raised the possibility of legislation, including the Eyes on the Courts Act, which would address broadcasting in the Supreme Court and federal appellate courts. Ehen asked directly, three of the witnesses (Fogel, Wasser, and McCormack) expressed personal support for such legislation.

We have seen these proposals before, and the federal court system has always been able to push off Congressional mandates for cameras. But given the sudden and all-encompassing nature of the switch to remote proceedings this spring, one can fairly wonder whether that type of avoidance can be sustained.

My guess? The federal courts will allow livestreaming at the discretion of the individual judge(s) in the not-too-distant future. But they will do it as part of their own initiative, as external pressure from Congress and the media begins to coincide with internal pressure from judges and attorneys who have had positive experiences with remote hearings.

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