The most transparent district judge seized upon a point made by another transparent judge, Richard Posner.
The American people know more about the CIA than the federal judiciary.
I suspect that’s partially true because the CIA is full of spies, and spies are cool. Judges, not so much. How many judges drive Aston Martins, for example? Yes, that’s MI5 rather than the CIA, but that only means Brit spies are cooler than American spies, and as everyone knows, the Brits make far cooler cars than we do. Would Clancy have Jack Ryan drive a Ford Fiesta? But I digress.
Judge Richard Kopf applauds Judge Posner’s call for judicial transparency:
Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.
Yeah, well, that’s true, but unavailing. Having video available of every proceeding would create the appearance of transparency, but would do little to further transparency. The reason is fairly self-evident. Legal proceedings are tedious and boring. For every fascinating story that takes five minutes to tell, there are 50 hours of proceedings. Who has that much popcorn?
There may be a handful of rather extraordinary people who will hunker down and watch pedestrian proceedings. You can identify them from the metallic sheen of their hats. But most people, regular people, have lives that preclude them from spending every waking moment watching the call of a court calendar. Their viewing time is limited to funny, interesting and cute kittehs. Watching federal judges doesn’t make the cut.
It’s a tree falling in the forest and no one there to hear it issue. If these videos existed but no one watched them, would that mean there was transparency?
I’m all for limited transparency. Despite the fact that I agree wholeheartedly that the working of the federal courtroom should be an open book, there remains a part of me that says it must retain some element of dignity. Familiarity breeds contempt, and there is already too much contempt for the least dangerous branch. That’s not good for business.
But real dignity is needed, not the feigned “yer honor” crap and the faux laugh at lame jokes. Real dignity is earned, a concept foreign to the young and people in robes, who contend that the robe alone commands respect. To a point, sure, because you can toss me in the slammer, but is that really all the respect you want? I doubt it.
If there should be transparency, and I agree there should with the proviso that dignity remain intact, then it ought to be real. I have a somewhat different view of what judicial transparency should look like. Take a ruling after a suppression hearing. Instead of the typical “denied” wrapped up in layers of well-worn judicial malarkey, how about this:
I deny the defendant’s motion to suppress because I always find agents credible unless there is conclusive proof that they are lying through their teeth, and then I still find the agents credible 80% of the time anyway, because I like the agents much better than defendants and I think the defendant’s guilty anyway, so I don’t want him to get away with it just because they violated his constitutional rights.
Now that’s transparency. Or when the prosecution gets caught dirty, lying to the court and defense about some source of evidence or failure to disclose.
While it’s absolutely certain that the assistant lied to everyone in this room, knowing full well the truth and his obligations under law, I will not find that he lied because that would do his career grievous harm and he’s just a kid, and a well-intended one even if a liar, and I like him well enough, so I instead find it in the interest of justice, not to mention the kid’s career, to pretend it never happened, attribute it to an unintentional mistake, sweep it under the judicial rug and give the government a Mulligan.
As a judge, you know that I can’t call “bullshit” when you do this. You know that this only encourages more lies, deceit, manipulation and abuse, but you just won’t call it what it is because the kid’s a nice enough guy and you really don’t want to ruin him. Ruining the defendant, on the other hand, doesn’t trouble you at all, because, well, he’s the defendant and he deserves it.
When government prosecutors break the law, it’s entirely different than when defendants break the law. Even if defendants didn’t break the law. Of course, if a federal judge caught me lying to his face, you can bet your sweet ass I would be walking out of the courtroom in cuffs.
For any judge who believes the public has a right to know what really goes on with the Secret Society of the Federal Judiciary, you have it in your power now, this very instant, to be transparent. Stop hiding behind facile jargon and start using a little plain talk, real rulings, that say what you’re doing. Now that’s transparency.
Plus, it would make for a video people might actually want to watch.