On December 13, a delegation of Russian judges, journalists, and NGO representatives took part in a daylong Dwight D. Opperman Institute of Judicial Administration (IJA) event at NYU Law examining the interaction between courts and the media. The visit was part of a “Court Monitoring and Transparency Study Tour” that brought the delegates from their home country to Washington, D.C., and New York City with the goal of improving judicial relations within Russian civil society and understanding the appropriate interactions in the U.S. among the judicial branch, the press, and the public.
The afternoon session, “Constitutional Law and First Amendment Issues—The Media's View of Covering Federal and State Trial Courts,” was moderated by Oscar Chase, Russell D. Niles Professor of Law and IJA co-director, and featured panelists from both the journalism field and the bench. Lincoln Caplan, a member of the New York Times editorial board who covers the U.S. Supreme Court and legal affairs for the Times and has been a staff writer for the New Yorker, the New Republic, and U.S. News & World Report, argued that “the relationship between politics and law is often so intertwined that it’s essential for the integrity of courts to try to keep politics and law as distinct as possible.”
Caplan pointed to SCOTUSblog, the exhaustive online resource for information about Supreme Court cases past and present that makes briefs, transcripts, and opinions instantly available to anyone. The ready availability of such material, he said, “represents a concerted choice by the highest court in the United States to be as open as possible about what’s being considered by the Court and why decisions are made, and in some cases how decisions are made as well. It’s possible to get all of the reasoning that is competing for the justices’ support.... This openness is a way of validating what the court does, of making certain that citizens who want to can follow its choices.”
Diane Dimond, a reporter for Newsweek and the Daily Beast who has covered national politics and criminal trials for print, radio, and major television networks, said, “I don’t know about Russia, but America loves a great trial…. The American people really want to know, need to know about their justice system.”
Despite her background in television reporting, Dimond acknowledged that “when cameras are there, things change. Lawyers perform for the cameras. Defendants, knowing that there’s a camera in the room, will act out, knowing that they’ll look like the big honcho on television.... Letting the light in on our judicial system is a very good thing, in my opinion, and I think Americans really thirst for it. They’re interested in the way the courts work. But I think that we all must realize that sometimes, letting too much light in can blind us.”
Judge Robert Levy ’75, a U.S. magistrate judge for the Eastern District of New York and an adjunct professor at NYU Law, traveled to Russia in 2008 for a press conference and hearing concerning a bill pending in the Duma limiting pre-trial detention for economic and nonviolent crimes. In the course of that endeavor, he realized that there were no substantive statistics in the U.S. to reveal whether domestic courts detain people too often or insufficiently before trial.
“We need to have information about the effect of our decisions,” he said, “and whether we’re making accurate decisions or not.... Transparency in the court system is not only for the public to understand what’s happening in the judiciary, but also for judges to understand what they’re doing.”
Another judge, Peter Hall of the U.S. Court of Appeals for the Second Circuit, has visited Russia three times regarding issues related to rule of law. He pronounced it “critical that our judicial system be open to the public and be fully examined.... When we fail to do this, in the relatively short run, we have an adverse impact on the rule of law. In the somewhat longer run, although one might think judges can function independently if they can do so behind closed doors, it really does have an impact on the independence of the judiciary. The less the citizens of the country know about how the judiciary operates, the less independently it will be able to operate in the long run, because the judge will be subject to political pressure and the whims of the current issues rather than be protected by what everybody understands are the parameters of the judge’s job.
Wrapping up the panel, Mary Holland, director of NYU Law’s Graduate Legal Skills Program and a research scholar, asserted that courts can help address the general crisis of confidence in governments “by drawing the line between politics and law, and staying out of politics as much as possible. To do that, the courts must be independent, and the independence of the judiciary is an issue in every civilized country.... Transparency is paramount. If courts are going to have the confidence of the people, they must be open to a judicious extent, and when they are open people are more trusting of courts and they’re more respectful of courts.”
The event’s morning panel, “Public Relations and Interactions with the Press: The Court's View,” included U.S. District Judges Nicholas G. Garaufis and Brian M. Cogan of the Eastern District of New York as well as Judge George Bundy Smith (retired) of the New York State Court of Appeals.
“The Opperman IJA was gratified to be asked to arrange part of this important visit,” said Chase, “and to be able to bring together NYU faculty, federal and state judges, and journalists to explore how judicial decisions are reported and made available to the public in this country, and what Russian courts and journalists can learn from our experience.”
Posted on December 16, 2011