On paper, judges and reporters have a lot in common. Both try to be impartial, both sort through facts in search of the truth. And both want the public to understand what’s going on in the American justice system.
In practice, it’s a sometimes-rocky relationship – often amicable and occasionally strained.
That was the conclusion of a panel of judges and journalists at a program at the ABA Annual Meeting in New York. The seventh annual Forum on Judicial Independence was titled “Judicial Ethics in the Time of Fake News, New Media and a New Administration.”
Moderator Benjamin Holden, a former reporter who teaches at the University of Illinois, asked the panel – two judges, a retired judge and a Supreme Court reporter – if America’s free press and independent judiciary are under attack today in an unprecedented way.
“I think all of us would say yes,” replied Jonathan Lippman, former chief judge of the New York Court of Appeals. “I don’t think there’s any doubt about that. It’s hard to say the independence of the judiciary is not at risk and the free press is not at risk.”
To enhance public understanding of the courts, Holden urged judges to take new reporters into their chambers and “train them.” Lippman agreed: “I’m a big fan of (judges) developing deep and meaningful ties to press outfits. You want this person to understand what’s going on.”
Judge Johnnie Rawlinson of the U.S. Court of Appeals for the Ninth Circuit disagreed. She said when reporters call, she refers them to the court’s public information office. “They’re not looking for a good news story,” she said.
The judges also disagreed on whether it helps public understanding to have cameras in the courtroom. Rawlinson said she initially opposed cameras, but once they were installed at the Ninth Circuit, they were very successful. Some law schools stream the court’s arguments.
“By and large, I think it’s been a positive for our court to have the openness that we have with the cameras,” Rawlinson said. “And I’m hopeful the experiment will become the norm throughout the country, including the Supreme Court.”
Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia disagreed. While he sees advantages of cameras at the appellate level, he said cameras in trial courtrooms are a problem. “I still am very much affected by O.J.” – the O.J. Simpson murder trial of 1995. “I’ve seen witnesses in my court who would be affected if video was there. I would not favor video even today at the trial level.”
Lippman said he wonders if cameras have any effect at all, if anyone is even watching. “The truth of the matter is this is a party that nobody comes to,” he said.
Chris Geidner, legal editor at BuzzFeed News, countered that more than 100,000 people listened to live streaming audio from the Ninth Circuit during arguments over Trump’s travel ban. He said BuzzFeed provided running commentary as the arguments were going on. “It provided an instantaneous rejoinder to claims that there was an out-of-control judiciary,” Geidner said.
In years past, Geidner added, the U.S. Supreme Court provided same-day audio from its arguments. Now the Supreme Court provides audio a few days later, and that makes reporting on the court much more difficult.
The biggest laugh of the afternoon came when the moderator asked the judges how their colleagues react privately, over drinks, to President Donald Trump’s criticism of the judiciary.
Lamberth smiled and replied, “If I was over a drink, I might answer that.”
The program was co-sponsored by the ABA Standing Committee on the American Judicial System and the National Judicial College.