Stop the theater, let there be TV

Our PSB/C-SPAN national poll found that almost three in five (59 percent) voters say Senate confirmation hearings provide only fair or poor insights on the qualifications of the nominee. As The Wall Street Journal recently noted, lawmakers suggested the Senate Judiciary hearing on Kagan’s nomination was “empty at best and dysfunctional at worst.”  

Kagan got only five Republican votes and 63 votes altogether — scraping perilously close to the 60-vote margin now necessary to pass almost anything in the Senate. The confirmation process no longer explores judicial qualifications independent of ideology, which it largely did throughout American history until very recently. For example, the final vote on Ruth Bader Ginsburg’s 1998 confirmation was 96-3, though there were no doubts as to her ideology.   

{mosads}“Things are changing and they’re unnerving to me,” noted Sen. Lindsey Graham (R-S.C.). “The court is the most fragile of the three branches. It has no army to defend herself. It has no political voice. It has no lobbyists, [and it] can’t be on cable TV.”

What the public gets through television today is the Congress or the president beating up on the court.  The 5-4 Citizens United decision led to the president’s public rebuke of the Court during his State of the Union address last January. Chief Justice Roberts says the annual speech to Congress has “degenerated into a political pep rally,” and as such, Roberts thinks the Justices should stop attending.    

That makes sense insofar as partisan politics damages public esteem for the court.  

Our PSB/C-SPAN survey revealed that only 29 percent of all American voters say the Supreme Court is doing a good or excellent job. Disdain for the work of the court is a problem if you assume respect for the institution and its rulings is a fundamental aspect of our constitutional democracy.

As Albert Einstein noted, doing the same thing over and over again and expecting a different result is the definition of insanity.  Letting the president and Congress define the court and its work in inflammatory ways while expecting anything but damage to this “fragile” institution meets that definition. The same sound judgment leading the Supreme Court Justices to consider boycotting the next SOTU is the same that should lead them to permit televised oral arguments.  

Nothing concerning the legitimacy of our constitutional institutions changes quickly — but legitimacy can erode over time. Permitting televised oral arguments would make it much harder for the work of the court to be viewed solely through the distorted lens of the other two branches and prevent it from becoming a political punching bag subject to future Senate filibusters and presidential lectures.

Televising oral arguments is by no means a novel or dangerous idea. 

The vast majority of U.S. state supreme courts, as well as the British Supreme Court, allow television. “If you bring … cameras into the oral argument there’s a big plus for the court and for the public,” Justice Clarence Thomas recently told a House committee. “I think they’ll see that we do our job seriously. We don’t always get everything right, but we take it very seriously.”

Our national survey found that 63 percent of American voters support cameras, with broad strong support across party, race, gender, and ideology. And among the 37 percent who oppose televised oral arguments, when told that spectators and the media are currently permitted, fully 60 percent changed their mind in favor of oral arguments.  This means that, as Sen. Arlen Specter (D-Pa.) noted at the Kagan hearings, “about 85 percent of all Americans favor televised hearings.”

At her confirmation hearing, Kagan was asked about televising oral arguments. She said, “I have said that I think it would be a terrific thing to have cameras in the courtroom … I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” By a three-to-one ratio in our PSB/C-SPAN survey, voters say cameras would increase respect for the Supreme Court, not decrease it.

Now that Justice Kagan is confirmed, it’s time for a 9-0 unanimous decision in favor of televised hearings. Let the Supremes be on TV.    

Robert Green polls for C-SPAN on issues concerning the Supreme Court. He is a Principal at Penn Schoen Berland, a research-based strategic consulting firm.