May 2006

Bills Would Bring Rent Relief to Judiciary, Allow Cameras in Courts, Shape Judicial Security and Review, and Create Inspector General

Late last month the Senate Judiciary Committee unanimously approved S. 2292, a bill that would, in its own words “provide relief for the Federal Judiciary from excessive rent charges.” The legislation, if enacted, would require that rents established by the General Services Administration (GSA) for all courthouses and facilities provided to the judicial branch “not exceed the actual costs of operating and maintaining such accommodations.” A similar bill, H.R. 4710, the Judiciary Rent Reform Act, is pending in the House.

The Judiciary’s total rent obligation to GSA is now approximately $1 billion, and yet the estimated cost to GSA to operate and maintain court-occupied facilities is approximately $450 million. From 1985 to 2005, the Judiciary’s space inventory has grown by 166 percent, while rent obligations to GSA have increased 585 percent.

Inspector General Proposed

Also late last month Senator Charles Grassley (R-IA) and Representative F. James Sensenbrenner (R-WI), chairman of the House Judiciary Committee, introduced legislation that would establish an inspector general for the judicial branch. The bills, which are identical, are titled the “Judicial Transparency and Ethics Enhancement Act of 2006.” In the past, the Judicial Conference has opposed such legislation, pointing out that the Judiciary is an independent branch of government and already has in place numerous audits and reviews of federal Judiciary funds, programs, and operations.

Courts Would Open to Cameras

Two bills that would open federal courtrooms to cameras are headed to the Senate floor with the approval of the Judiciary Committee. One bill, S. 829, introduced by Senators Charles Grassley (R-IA) and Charles Schumer (D-NY), would allow broadcast coverage of proceedings at all levels of the federal courts, at the discretion of the presiding judge. Called the “Sunshine in Courtroom Act of 2005,” the bill provides for the obscuring of non-party witnesses’ voices and images upon request. A three-year sunset provision is included for the district courts. Similar legislation was introduced in the 106th Congress, and since then the Senate Judiciary Committee has reported favorably bills to allow cameras in courtrooms three times.

A second bill, S. 1768, introduced by Senator Arlen Specter (R-PA), would require television coverage of all open sessions of Supreme Court proceedings unless a majority of the justices decide that allowing such coverage in a particular case would “constitute a violation of the due process rights of one or more of the parties before the Court.”

Since 1996, Judicial Conference policy has allowed all federal appeals courts to permit their proceedings to be televised, but only the Second and Ninth Circuits voted to allow electronic media coverage. The Conference has concluded that it is not in the interest of justice to permit cameras in federal trial courtrooms. Electronic media coverage of criminal proceedings in federal courts is expressly prohibited under Federal Rule of Criminal Procedure 53.

A Federal Judicial Center study of a three-year Judicial Conference pilot program allowing electronic media coverage of civil proceedings in two appellate and six district courts, found that 64 percent of the participating judges reported that, at least to some extent, cameras make witnesses more nervous than they otherwise would be. In addition, 46 percent of the judges believed that, at least to some extent, cameras make witnesses less willing to appear in court.

Judicial Security and Review Impacted

The House passed H.R. 4472, the “Children’s Safety and Violent Crime Reduction Act of 2006” in early March and the bill is now pending Senate Judiciary Committee action. The bill includes a provision that would require the U.S. Marshals Service to consult with the Administrative Office regarding the security requirements of the judicial branch and a provision that would protect judges from the malicious recording of fictitious liens. In addition, the bill would allow judges who have received supervised training under regulations set out by the Attorney General, to carry firearms.

H.R. 4472 also would amend the habeas corpus procedures in 28 U.S.C. § 2264 and § 2254 to bar federal court review of claims based upon an error in the applicant’s sentence or sentencing that a court determined to be harmless or not prejudicial, that were not presented in state court, or that were found by the state court to be procedurally barred, “unless a determination that the error is not structural is contrary to clearly established federal law, as determined by the Supreme Court.”

The Judicial Conference has opposed such limits on judicial review, stating among other reasons, that they have the potential to undermine the traditional role of the federal courts to hear and decide the merits of claims arising under the Constitution.