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tv   Capital News Today  CSPAN  July 5, 2011 11:00pm-2:00am EDT

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unicode with me but aren't people. but they also became their way of learning the ways in the u.s. ..
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>> i have a question motivated by a bumper sticker in the wealthy liberal i live in which is called unity through diversity. is that a tired slogan left over from the days of
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hyperself-conscious diversity talk, or is there something to that. >> well, i gave you a very broad picture of what's happening in terms of, you know, religion and public life in this country. that's not to say it's been a smooth curve. there's been a lot of bumps, pretty big bumps along the way, and it has to do with new entrance into the u.s. as a country, as a political system. again, primarily through immigration. pushing the envelope, as it were, certainly from the standpoint of the majority established community. there's one example, and that's the experience of roman catholics in this country. again, because of major migrations from europe, but in that wave, primarily from roman catholic countries, you know, ireland and italy and poland and so forth, this was profoundly
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unsettling to the mainstream protestant establishment, and there were tensions and conflicts, but violence in places like philadelphia, fringe, -- for instance, where the original campus of bellanova was torched to the ground. that's in philadelphia, and one of the reasons, the real reason the precipitating reason had to do with bible reading in the public schools and whether, you know, catholic kids would be allowed to read, you know the delayed version rather than the king james version, and there were riots in the street, and the governor had to call out, you know, their guard to put down the rebellion, so it's not by any means been a smooth evolution, but it has been an evolution nevertheless, and now catholics basically are considered the mainstream in the
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united states. obviously, post-65 immigration, jennifer mentioned, it's predominantly from latin america and asia, about 75%-80% from asia. the latin american immigrants are predominantly christian. the main demographic impact they're having is really putting more members into the roman catholic church, unlike the native born who are two to one, protestant imgrants coming into this country are two to one catholic. they are overwhelming christian like in europe, but overwhelming cat like opposed to protestant, but the rest of the immigrants coming in, a large percent of them, muslim-americans who are foreign born is two-thirds, the percentage of hindus is 80% and buddhas. the latest wave of immigration
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is a greater wave of diversity pushing us not just to the christian and jewish -- that's another story we could talk about -- even to the abrahamic inclusion of muslims, still within the broad abrahamic tradition, it's now buddhists and hindus and so forth. it's a continuing challenge, and, again, it just seems to me it's how the government and we, as a society, respond to that diversity and choose to accommodate it that will determine precisely whether these, you know, religious identities also serve to shore up the broader civic io dent diversity. >> diversity, just a bumper sticker? >> yeah, i think the contrast of the panels is interesting. could it be imgrants and newcomers make for a more cohesive country and while the white people living in kansas will be the difference of the white people living in kansas and the white people in l.a.
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fragment two to two different cultures. that's an interesting question; right. immigrants coming together around a common sense of what patriotism is where the kansas people and l.a. people have a civil war. that's a really, really interesting notion, but i think unity and diversity, is a nice slogan, but the problem is it leaves out what's the there there that we do all belong to together, and, you know, i think it's the sort of, you know, if you want to contrast basically canadian or multity culture model, there's groups and what ties them together is not much more than toll earn rains. i don't think that's the american model, and i think the american model had -- there was something we all bought into it, but i think wasn't about, you know, do you -- cultural conformity as defined in europe. it's not like being german or french. there was a lot of difference in
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culture, but there was a set of ideas that people bought into that made america what it is, and i think unity through diversity leaves out that there there that is what, you know, those set of ideas, whatever they are, and i think, you know, i think they are hard to describe, but if we had to go into separate rooms and describe them, we'd have something similar. it's about values and opportunity and equality of opportunity and tolerance and freedom, and that is not just the same as tolerating patchwork and unity through diversity. >> jennifer lee? >> yeah, i think this is a really interesting opportunity to actually talk about some of my work on intermarriage and multiracial identification and howdy versety is changing opportunities. i think one of the fascinating things is intermarriage has risen dramatically over the past
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50 years. about one and 13 american marriages are interracial marriages which to me was actually quite surprising. even if i live in southern california and i see a number of interracial relationships, this is the united states as a whole and to borrow data from the pew center, look at 2008, the marriages that took place in 2008, one in seven marriages was interracial in 2008. what's fat nateing though is that what we did was my co-author frank dean, a demographerrings we looked at scenes and brock them down by metropoll tan areas and states and metropolitan areas, most racially diverse, had the highest rates of interracial marriage and also the highest rates of multiracial reporting, so diversity on the one hand you might think that the increase of
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groups could lead to the erection of boundaries among groups, but what we're finding is the opposite that when you have a large presence of at least three different groups, you find more interracial marriage and more multiracial reporting, and so the increased diversity is actually not leading to fragmentation. it seems to be leading to more -- a reduction of social distance between groups. with that said, what's fascinating though, the figures i gave among asians and la tee knows -- latinos, about 30% of asian and latino marriages are interracial marriages, but if you break that down by just u.s.-born asians and latinos, these figures jump. about 52% of u.s.-born latinos are in interracial relationships. among asians, this is actually startling to me, and i went back
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and checked it a number of times, 72% of u.s.-born asians who are married are in interracial relationships, and so this gets to the issue of diversity, gets to the issue of are we fragmenting as a society? is immigration fragmenting us, and all of the research that we find and looking at the barometers of social distance, we see that -- the gaps are closing especially for asians and latinos, and among those, especially among u.s.-born asians and latinos and so i'm clear not to point a rosy picture that tamar said we're guilty of, one of the other findings that's remarkable in my work is this whole idea of black exceptionalism that even though we find these patterns of bridging the social distance, the one group for whom that distance isn't bridged as
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closely or as quickly is that between african-americans and whites. >> let me ask you all to speak a little bit about the politics of this all and the discourse surrounding it. on the one hand, you are painting a picture of more unity than division or a trend towards more unity than division on the ground whether it's racial and identity, politics, integration, but the politics and the discourse seem to belie that. whether there's a war on christmas or afraid that shia law will be the law of the united states or white people increasingly believe they experience more discrimination than blacks or immigration is tearing the u.s., but we are, in facting, being torn apart by these things, and the first panel pointed out how the politics are increasingly fragmented. i wonder if you can speak about
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the -- the decoupling between what we see going on on the ground and the way that we talk about this. jennifer, why don't we start with you and go down the line. >> oh, gosh, i was hoping you would not start with me. [laughter] i guess one of the things i'll talk about, and this is puzzling to me, and i don't have an answer. i'm curious to hear what the panelists have to say and hear from you in here because i do see this incredible divorcing of what someone in the first panel talked about political ideas and our ideas, and then the to political ideas and we were talking earlier about what americans support for our documented immigrants and talk about that? >> yeah, i was pointing out that americans are kinds of all over the place when it comes not public opinion about immigration, so if you look at polls taken last summer, a majority say that they would favor the small -- a small
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majority, but a majority nonetheless favor changing the 14th amendment so children born in the united states, unauthorized immigrants could not become automatic citizens, but yet a large majority favor a law that would create a pathway to legal residency for immigrants are -- who are here unauthorized. we have different views of immigration. >> i can't make sense of it, but i think it's incredibly paradoxical, and i think one of the fascinating things in our work is that if you give these unauthorized migrants a pass to citizenship, their children have much better educational outcomes so it's not that these unauthorized imgrants don't want to naturalize. they often are unable to, but it affects not only them, but importantly it affects their children, and i know i'm really not answering the question. i'm going to kick the ball over
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to luis who will probably answer better than i could. >> i don't think so. well, sure, i mean, you know, there are contentious issues out there. you know, take abortion. it's been a contentious issue unlike issues of gay marriage or gay rights, for instance, we have seen very little movement. the country still pretty much, you know, divided 50/50. it's interesting, however, how that breaks down because it is not so lid fying the denominational differences. for instance, at one point in the history, it was the protestant catholic, very neat divisions, and if you look at our data and analyze it, you will see that religious faultlines on that question do not run along denominational lines. they run through them. a highly devicive issue like that in an interesting sort of
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way has generated something that would have been unthought of 50 years ago. take conservative catholics and evangelical. by the way, when you add e january jell call and catholics, that's more than 50% of the country. these are not insignificant groups in terms of their size. these are precisely the groups that for 150 years of our history, they were at each other's throats. well, when you look at conservative catholics and e -- eevangelicals, they have came together, and break down boundaries between white evangelicals and conservative roman catholics in ways that, you know, i personally have found stunning, so, you know, you can add orthodox views to ma mix, and in other words the fault line there has not cemented denominational
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differences, but simply recon figured the way people line up on that. even a highly devicive issue like that, which is still highly diversity veesive for a society on the religious side has, in fact, also generated some forms of unity among more conservatively oriented groups regardless of religious tradition and more liberally oriented groups within those traditions. >> you are describing where i live. i spend a lot of time here in washington making immigration reform happen which we're doing a good job that we've stalemated into, and out of the country, going to focus groups, talking and speaking and trying to get a sense of where the public is, and it's -- it is a complete divide in ways that you might not expect, and i actually have an explanation of it so when you go out and you sit down with a
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focus group and ask them what they think about immigrants, you know, focus group is 12 people around the table, and i've done them all around the country, college educate the, not educated, women, men, talking about mostly white people, nonhis panic white people. they are complaining about the emergency room, spanish in the school, and there's a lot of gripes. if you let them talking about if they like imgrants or think imgrants are for for america or not, they are ambivalent, yes, they are good, but the school and the emergency room. talk about that for two hours, they get upset and it's painful and you think they come through the mirror at you. if you ask them what's your solution, and i'm talking about, you know republican women and, you know, in nashville, the most what we think of as unreconstructed on this. if you scw them what -- ask them what the solution is, they get pragmatic, and by the
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45 hour point, they're at the solution that president obama or, you know, congressman would be for. first they say, let's deport them all and think for 20 minutes and say that's impractical. how would we find them and it's exceptive, and how do you make that work. then they say let's make life miserable here and they go by themselves. yeahings yeah, and they talk about that, and that's not practice call either. who would mow my lawn? [laughter] about the 45-minute point, and i swear, you can set your watch by this, somebody says, you know, my husband would kill me, you will all can't believe i'm going to say this, but we have to let them become legal and jump through hoops and become legal, so you have the public out there very mixed views; right? likes that we're a nation of immigrants, but troubled by the immigrants coming by illegality,
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but when they are practical, it's a pragmatic solution. when you get to dc, there's no solution. they are in two camps, and now -- when i started this there was republicans and democrats for reform and republicans and democrats anti-reform, and now it's republicans against reform, democrats for reform, and they can't talk about it and it's a political football. watch it play out over the next two years will be painful, and one side blaming the other for not doing it, and we're becoming thee wedge issue and make abortion and gun control look like, you know, where they are talking seriously. the question is what's the difference? what's the gap? why can't we a connection with the public even though they are troubled, want to get to a pragmatic solutions and politicians who can't who are completely in a partisan standoff on it, and, you know, i think that one of the names that didn't get mentioned that much in the first panel, who i think is the most interesting writers
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thinking about is is morris. he takes about this on a will lot of different issues the public is ambivalent about issues. they, you know, they are for motherhood, but, you know, whatever they are, you know, every issue you can ask the public, there's ambivalence there. on immigration, it's we want to be a nation of imgrants, but troubled by the illegality. we want enforcement, but we want people to be citizens. it's a mixed up view with values at play, and the politics give them choices that are either/or. when you are given an either/or choice, you take it. you make one choice or the other. if politicians say we have to be anti-imgrant and you agree with them on other things, you'll take the an anti-immigrant choice. you want a prague gnat mat -- pragmatic solution. the issue is not wide polarization of the public, but the public thatments am biff
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leapt, confused, butments pragmatic collusions and the political elite offers polarized choices. i think that's what's wrong on immigration, and it's very hard for those people in the focus group to be heard saying we want a practical solution that works on a lot of dimensions, and you're sucked into the only choice you have is black or white, and they choose one or the other. >> a little of time left, so i'll ask faster. i want to turn to whattic is the undereying -- i want to turn to what i think the is underlying assumptions of the two panels that some is desirable and religious, ethnic, political groups can come togetherring but what are the specific things this have the potential to bring us together? military conscription, requiring the pledge of allegiance, what gets people alts of their particular camps and to feel
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some sense of unity to a larger camp that we call the united states? anyone can dive in. go quickly. >> i don't know that i have the answer. if i had the answer, i'd be running for president or something, but the one thing i would say about the whole conversation we've been having all day is that i think if you make cohesion your goal, it's almost like making the mechanics the goal as opposed to the substance. it's like people, you know, people say you -- people who say i want to get rich, you know, don't get rich as often who says i have a great idea for a product or company, and people who want to be happy are not as happy as people who say i want to accomplish something or want to be true to the people and love the people around me. the cohesion might be putting the product before the horse, and the horse is really about purpose all vailings and -- and values and have some sense of the country of purpose and values that we share. you know, elevating cohesion for
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its own sake, cohesion could be good or bad. i don't have the answer to the values, but when i look at the, again, at the 50s which i'm looking at trying to say, well, what's the difference? there was more sense of what the nation's purpose was and much more a sense of what our shared values were, and i think maybe cohesion as a goal, we might be chasing the wrong, and even for i'm for military service or some sort of national service i guess, for patriotic displays and all the things you talked about, but i'm not sure -- i think those are the mechanics rather than the substance. back at the substance question, but i point to substance. >> jennifer, what do we chase? >> i like what she said and follow-up on that in the sense that when you think about working towards something else that's larger than yourself and doing that and bringing together people of different racial and ethnic backgrounds, bringing immigrants together with native
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born americans, different gender backgrounds, and then working towards something else, that is really the goal, then you start to forget about the things that are different between you and among you and thinking about working towards the goal. i guess i thought about this a lot because some of my friends. are martial artists, and when they walk in, they don't care what they do. they don't care, you know, what racial and ethnic background you are, whether you're native or foreign born. they are working towards a skill, and that's how they are judged and measured. i thought about neighborhood associations or community associations when you are working towards the betterment of something else, leaving those description characteristics behind and working towards something that's beyond yourself. >> luis, where? >> at the research center, we take a strict non-advocacy position. technically, i'm not for social
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cohesion. i hope you folks understand that . [laughter] we research and report on the facts, but the facts tell us if you look at public opinion that, you know, that it's this sense on the part of religious communities that the country, that the society is open to religious expression, but in a way that is equitable for all groups and that really seems to be a winner. the biggest challenge, of course, today was one point television for catholics, jews, and others, which is the muslim community which without question since 9/11 had a difficult time. last year, quite difficult, but when we polled muslim-americans and did the first representative american survey of muslim-americans ring we were surprised at the extent which they absorbed basic american values and on rates of citizenship and language acquisition and so forth were really very far advanced in terms of their incorporation into the united states, so,
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again, to get to the specifics, probably if i'm judging our survey results correctly, it's this sense on the religion side -- now, i'm not speaking overall that they get a fair shake here, religion, their religion is republicked and from -- respected and from a legal framework, treated like every other religious group. >> why don't we take a moment now to open it up to all of you and take questions and comments, and i'll ask you, in stating your questions and comments to be as brief and concise as you can. >> thank you, we have two of us going around. no, no, we'll come to you. >> there's two microphones, and they'll come to you. >> i'm hugh. you said the "c" word, conscription, and as a retired military officer, i'll tell you we want draftees less than we want gays or blacks or women, but it does open up this idea of
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whether military service is something that holds us together. all be it only 5% of us are whatever it is, and having had that experience, and it is a -- it is an experience that is unequally shared by immigrants and minorities with an officer core that is still somewhat white, but it's only the whites that didn't go to law school. >> thank you for your comment. i think it's interesting that you bring up the military because it's an institution that when we talk about cohesion, we don't often talk about, although there's a number of countries in the world that use the military as what some people call a kind of school of the nation. if you want people to kind of come together, feel some sense of unity about what it means to be korean or israelian, i don't use those two by coincidence,
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then you require them to do a year of military service and so some people have some tie and connection to what it means. charles suggested and bill clinton proposed a national service model so people don't have to go and digest the military, but you can feel a sense of attachment. >> that's something to pick up on. i understand the military doesn't want draftees and figured out a better way to get skilled people, but why not a national service? i'm surprised. i thought that would be a classic obama idea, but not many people want to do. people are in a hurry. poor people want to do it, but everybody elsements to go to law school, and we propose nobody would want to do it which tells us something about the sense of cohesion and sacrifice. you know, we are all determined to get the law school and get that good job or get to whatever it is. how many people would take a year out to build bridges or teach in schools or whatever,
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some people do, but i'm not sure you can get everybody to. >> a lot of college graduates have to now because that's one of the few options available to them, but that might be good. [laughter] >> over here p >> my question first and a quick comment. have any of you done work in the arts in terms of social cohesion? i would like to suggest also that instead of cohesion, we could be talking about understanding. i interviewed 19 artistic directors of culturally specific dance companies, and found that in the startling way all of these different ethnic companies -- we use the word culturally specific are becoming integrated into the mainstream of american dance, and creating an understanding that is going beyond the specific communities from working in the basement to working at the kennedy center,
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and i have liked to have heard more about the role of the arts because i think it's quite important and interesting. that's the question and the comment. .. people who immigrate historically tend to be a little more entrepreneurial and willing to take risks and take chances and go out, which is presumably one of the reasons the united
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states has been as entrepreneurial as it has and in recent years, there have been very real economic reasons for the high level of both legal and illegal immigration. i would like your comments on that because for a long time, the illegal immigration was accepted by many people, both businessmen and people that needed gardeners and things like that. it has suddenly become much less acceptable but has left us with a situation where we have a large number of highly productive immigrants often who are exploited because of their lack of legal status and how we can resolve that in some kind of cohesive way. and the economic ups and downs of that. thank you. >> i think you ride up an excellent example, a point about the selectivity of immigrants, right? so the immigrants who come here from different countries in some
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ways they are the most entrepreneurial because they are willing to leave their countries of origin and to make a new life for themselves and somewhere new and be the foreigner. and so, they are a self-selected population. immigrants have a high level of entrepreneurship. i mean if you look at certain asian immigrant groups, their there are entrepreneurship rates are extraordinarily high. but that is in part due to the fact that they are closed out of jobs for which they are qualified for because they don't speak the native -- they don't speak english well and they don't understand the cultural norms as native-born culture. but then you also talked about what are we to do with this group of unauthorized migrants who are coming here are opportunities? the fact that we are hiring them -- tamar jacoby jokes about
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the fact, who wouldn't mow your lawn? who would he serving you in restaurants in who would be doing the back service where? who would be cleaning your hotel rooms? who would be harvesting crops, exactly come in southern california. i try to buy them all the time. who would be doing this work? so we have this strange paradox to go off of the theme in the sense that they are here. not to mention immigrants are here. they are doing labor yet for some reason we don't feel that they belong. it seems like ringing together what tamar had said earlier about some of the focus group interviews, i think americans are advocating for a path of legalization for people who are here and especially their children who may have been born outside the country but raised here most of their lives. and so that seems to be the only humane way to go about it and also exploiting their own opportunities and to make sure
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that they are not exploited in the process. >> and i would add to that, there is no question that immigrants are drawn here for economic opportunity. that is what drives it and we talk about other things. you don't get welfare and you don't get services. they come to fill niches where we don't have a robust workforce and a more. americans are more and more educated so there used to be in 1960 half of the american men in the workforce were high school dropouts wanting to be doing one skilled physical work. today less than 10% of the american workforce are high school dropouts. we need people to do farm work and we also don't educate enough engineers so any people at the bottom many people atop an immigrants come for that. in the downturn we see how much it is darker driven because the flow from mexican -- mexico has been cut in half. we don't need as many construction workers and we don't need as many people in the kitchens and hotel so it is very market-driven and very market
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sensitive. the problem is and i think this is where again public opinion is so compensated but the public does understand that. the public thinks if we just pay them more than my cousin will do it. the problem is a is not true and if you pay them a dollar or $2 more you go out of business. so the problem is the america public doesn't get the economic drivers and that the american public like the european public and public's all around the world even when they understand the economic piece there are cultural fears for complex with the economic piece so it is very hard to have a russell conversation about immigration. with a rational conversation people would be all for the policies. it takes a long time to get to that conversation with the scary sound bites and polarize choices that tend to intervene before we get to the rational conversation >> in fact that is precisely the
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attitude we find when we pull most of americans. a high percentage who say yes if you work hard you are going to get far in this society so they really have that can-do american attitude. i should point out, and i think i mentioned this in passing, like muslim immigrants in europe, the muslim community in this country tends to be much more highly educated. in fact they are middle-class when you look at their educational levels and income levels and there are some immigrant communities that in fact have a higher percentage of immigrants, hindu americans and even higher levels. in fact the highest educational levels of any group in this country, those levels are held by hindu americans. it is really quite extraordinary. it does depend on what end of the immigration spectrum one is talking about. this is the h-1b and i suppose we would call it. >> another question on your right over here. >> i actually just wanted to bring in the added component of
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i guess gender and the in the world that it plays with the immigrant population and integration. the reason i bring that up is i have done a little bit of research with my school in terms of the iranian dais and we found that within germany, sweden and canada, the females integrated a lot more quickly than the men dead and to a certain extent there was even a cultural tension between men and a society where as whereas the society really cultivated and brought with it. it was because of like the western feminism that profited and another conversation that it was because women were kind of subcitizens in iran and therefore that translated into as an immigrant status not too much of a change. do we see something similar within the united united statese sense that you were saying they population is very immune and we talk about the machismo society and help patriarchal that is. are there similarities within the united states and i guess as we see integration into society
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and disintegration within the immigration family itself? >> that is an excellent question. i mean, think the study of gender, thing people need to pay more attention to gender differences and immigrant integration. i thought of a couple of examples. i mean one of the things is that oftentimes highly educated men have a harder time integrating into the united states because they experience a severe status drop. so if you are working as a professor in your country of origin and you come to the united states, you are not able to get an equivalent job and you have to open up a small business in a low income black or latino neighborhood to make a living. there is a status inconsistency. where's the women, the status drop is often not as severe. so that is one thing i would say. the second thing i was thinking
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of is patterns of intermarriage and they are very gendered. not so much among latinos but especially among the asians. asian females are twice as likely to intermarry as asian males and that has implications for integration. so, gender is working its way -- in complicated ways, but it seems that females for reasons of pre-migration status and also there are reception. if i were to make a generalization, have an easier time integrating in some regards. >> the only thing i might add is there is some evidence that especially among the children of low skilled immigrants, women are doing better than men and part of it is because women are being raised, women and men are being raised according to traditional gender norms of childrearing so oftentimes especially in big cities that means that the toys are allowed to roam free afterschool and the
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women have to kind of come home and help out in the household. in doing so they are developing a set of skills that are actually somewhat transferable to the labor force, transferable to school. they stay out of trouble more so you see them getting better grades, getting better jobs and more likely to go to college. so yeah there are gendered patterns of integration and in addition to the kind that jennifer spoke of. >> the question was the iranians in particular. >> i think that is fairly consistent with what you mentioned about it. >> we should just also keep in mind as long as i'm on the muslim issue that there is a wide variety of, among american muslims that really come from every place around the world. in fact there is no country of origin that are counseled more than eight are sent of american muslims which is another huge difference with europe. iranians in particular, given the particular historical and political circumstances, many of
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their migration tended to be more westernized. in fact they are the least religious muslim group in this country. not unlike if i may give you a comparison on the latino side with my folks, cuban-americans who tended to be white middle-class, fairly well-educated and among latinos the most secularized of the groups. >> we will be taking our last question for this panel. >> i am julia. i have a couple of points. one just a little factoid for you luis. ice to teach in kuwait in one of my students came over to florida for spring break and they traveled in florida and travel in traveling europe and when he said he was surprised. he faced no discrimination and there is no racism in florida. not like europe. so you know i mean there is a sense in which i think we like to talk about these things and i think as americans we get
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ourselves wrapped in bunches over some of this stuff. and four as it is not as bad as it seems. and to the point about loyalty, and they think tamar, i really think this is where we need to be focused. this question of what are these deep core values that we hold? these deep core values transcend things and i think that is the one of the reasons why if you look at abortion, you have two very very deeply held values of defending the right to the person that can't defend themselves which is something that is deep within sort of an american psyche. we jump to the defense of someone that we see can't defend themselves. and, so you have two sides that are trying to define what that would be. and this question of life. so what are we doing to actually try to get to this level of --
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because i think that is where we get to our cohesion. how do we find these values that transcend everything that ring is together? >> we could solve that and if we could answer that. >> i will just say one thing. tamar is right that we define the american is as a sense of adherence to a creed. certain propositions about equality and the rule of the law and so forth. what is not resident in that creed is adherence to a particular religion. part of the reason why immigrants and folks of different religious backgrounds can feel like they can be fully american is because if they don't have to give up you you kw their minority phase in order to accept the american creed and i use that creed in quotations there, and i think it is a very significant thing. i think it also happens on the racial side and so forth.
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folks in europe have a lot tougher time coming to terms with that. you know, what does it mean to be german or to be french? many of these other things that we take for granted are not part of the american creed. it has historically been part of those creeds and that makes you know, their situation a lot more challenging i think that ours. >> i want to go back to, what this brings up to me is the point you made early on tomas about the panel and the panel before. when we are talking about immigrants were talking about religion we are talking about people who are with one group and thinking about how do i transfer that loyalty to a different are larger group which is different with the -- than with the first panel was talking about. it is about individualism is what his undoing is that he broader level. it is loyalty to my gated community but also an
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individualism. if you look at putnam is talking about people who don't feel they are part of something the same way that people in earlier generations felt they were part of. i think maybe when we are talking about immigration and ethnicity we have people who are loyal to a group the group but loyal to something and the question is transferring that loyalty. in some ways that is an easier problem than talking about really what do the various individuals that make up the country are focusing on their own materialistic and individual thing, what did they come together around? >> i really appreciated the story about your student who came to florida and he said that he doesn't think there is racism. tomas and i were talking about, what we talk about these issues with their students one of the things that gives me a really really enormous hope is that things that i see and tomas might see as the huge barriers for students. they are just so blasé about these things. i mean things that i get worked
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up about and i want to talk about race and racial attitudes. i mean there are are almost passed in and i'm not sure if it is because they are in california where there is an enormous amount of racial diversity and immigration isn't something new or different. but that does give me hope that this kind of anecdote that you mentioned is not new and it is not just original to this particular person. but that for the younger generation, the millennials i think we are calling them, the idea of diversity is not as big a deal as it is for our generation whatever we are. >> that doesn't necessarily mean the idea of cohesion is bigger. in fact this is precisely her point that if you talk to religious leaders for instance there may concern is not that there block is patriotic and committed to the united united s or community. it is what they see as the corrosive individualism that is
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basically distancing them from religion institutions but from other institutions as well. actually at the end here, debuted as a key theme we should focus on some are. >> on that note we will have to close and i want to take your panel and thank all of you for weighing in. [applause] >> thank you everyone. justice o'connor is not feeling very well so she has asked me sorter perform a wrap-up which i will do for those of you the word here at the beginning. my name is michael crow from arizona state university and at me say the following central question was really one intended to stimulate discourse and interaction and to sort of get a glimpse from leading scholars and authors and writers and anchors about the complexity of a question potentially as strange as can the united states remained united? i think is the indicated at the
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outset, probably for many many reasons and objectives that merits as much attention as we can bring to it as possible particularly because of the fact that least and thinking about what some of the panelists had to say today. what i was hearing in this discussion was this sort of dichotomy almost a dichotomous dilemma and that is this notion of the ideals of the united states individualism and individualized libertine freedom of religion, all of the things that make up who we are drivers to drive us to the point that when people either are arrive here from somewhere else or once here are able to find themselves freely expressing. they are able to do whatever they want to do and that is the way that the system is designed. and so given that, you have to stress. the stress of how can you be cohesive when everyone is free on an individual basis to be who they want or to do what they would like to do.
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and at the same time, how do you find ways to connect? it is in fact the case that these dresses i think are particularly acute at the moment for reasons like we heard from our panelists. i think michael in the first panel talk specifically about technology and disabilities whose create one's own world. if you can create your own world and it live in a place where your own world is a creative loafing chances are you are going to be highly motivated to do that. this notion that bill talked about upscale where within your ability to create your own world you can actually identify and create your own identity, move to a place for that where that identity can be maximized and then live your life within that space, that physical place. why wouldn't you want to do that? jim talks about this notion of what i sought partisanship convergence and culture in the notion of cultural partisanship.
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partisanship itself is changing and evolving. this notion of extension of partisanship. again, why not? so here we have this manifestation of this very stark dilemma that the american design is such that it drives us to accentuate our differences but the unifying factor is in fact the mechanism under which we are in power empowered to be able to do that. i thought randall kennedy's talk where he put down two very important concepts that were related to each other, the notion of attractive social cohesion and what he called decent social cohesion and he talked about the notion of who cares about the ceiling? we need to worry about the floor and if you have no access to the decent conceptualization of connectivity to everyone else,
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you have no participatory mechanism along the way. then we have left those as he said 42 million people behind. i thought that he was outlining something that one needs to keep in mind because one of the consequences of intense individualism is 32% of those people being children who are living and being raised in a particular environment for which they have no control. so it is a flaw if you will in the design that has not yet unresolved. this panel i think interestingly, and they think appropriately sort of outline some of the very significant almost research questions, so this notion of this dilemma that i mentioned between the ideals of america and the implementation of that americanism and this notion of when i was listening to you all, what i was hearing was this notion of real-time forces.
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i wrote down but i thought this panel could be called real-time high-speed social change. this notion of speed. social change has probably never occurred at the speed with which it occurs in the united states in the early 21st century. there can't have been a period in history where social change has occurred the way it has occurred here so from jennifer we heard over and over from different dynamic directions this notion of of the fluidity of social constructs. this notion of being dynamically driven by in my mind, by american values. so what the americans will look like in the future we are hearing about intermarriage and interconnection and inter-linkages linkages and so forth. there's probably no way to predict that other than a group of people driven by these american values through highly fluid dynamically driven social constructs. that is the social constructs have changed, are changing more quickly and are likely to
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change. from tomorrow we heard about new immigration waves in the interesting thing, i remember when something in the presidential campaign in 2008, someone said they went out and pulled everyone and they said, who won't vote for barack obama because his father is of african descent? 80% said i don't care and 20% said i care. well that means whoever said i care, that meant they are a racist because they actually were making a decision that they were unwilling to vote for someone because of the racial heritage of the father. and i said to myself well, great. that means we have now 80% who are seemingly not racist in 20% who are seemingly racist, seemingly racist. so i said to myself that is fantastic until you run the numbers. in a country of 300 million people, that is a lot of people so does this notion i think you were getting at tomorrow for
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justice notion of large numbers. we sometimes haven't realized that yes there has been waves of them at gration that have come and gone. immigration. there is seldom a time when you have a million and a half immigrants showing up all at once in a million and a half of next year. these are very large numbers. and to this notion of dealing with all of this new immigration waves and in this new technological world. where immigrants and others can subgroup in group and leg and communicate and and and so forth in ways that haven't been possible in the past. these are important questions about the issues of social cohesion or lack thereof. and then will lease this notion of come i think you are saying this. it was this notion of the cohesion that we actually are to have as a function of the fact that in the united states you want to be the hindu or the buddhists are the atheists the
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catholic or the jewish or muslim or whatever it is. be my guest. be my guess because there is nothing holding you back any of those directions you want to go so this notion then that the cohesiveness there was actually around the idea. one of the things i wanted to put on the table gregory for you in the center and others involved in for the fellows and others participating in this is that this is a really important set of questions. it is really an important set of issues but one that the old styles of approach, including academic sociology and other kinds of ways of doing things, they are not going to work. i'm not picking on the stanford sociology department at the uc-irvine sociologist parton. we of course did away with our sociology department. we have evolved a school for human evolution and social change and school for family and social dynamics and other structures. it is that old approaches aren't
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likely to work. old paradigms are not likely to work. you need to look at this from the perspective of all of these things that i thank our panelists were able to put on the table so for those of you that were able to ask questions thank you. i thought the questions were good and got people moving in the right direction and for those of you interested in this topic, this center will be continuing and will be continuing to advance both in the form of public discourse as well as written materials and academic work and so forth so thank you for being here. [applause] [inaudible conversations] [inaudible conversations]
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>> this case involves the inescapable question of whether the states can support single sex education. >> tune in saturday at 6 p.m. eastern. >> the 4th circuit court of appeals conference, attorneys, judges, and law professors talked about how to make the courts more open enunderstood to the public. panelists discussed coverage of cases, cameras in the courtroom, and the effect of the internet
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on news coverage of course cases. the conference was held at the greenbriar resort in west virginia. >> it's now time for our forum and on undeniably important topic een titled "opening up, can the courts be more open and better understood?" we have arranged for you this morning and impressive group of legal thinkers including two distinguished federal judges. judge barbara ke, nan and judge joseph anderson of the district of south carolina plus two nationally renowned lawyer journalists including howard bashman. a top low professor, sherrilyn
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ifill and then marshall jarett. marshall has a particular place in my heart as a highly placed justice department official, and a servant to our country over the years that places him among west virginia's most outstanding citizens. in a very basic sense, and i'll have more to say about our panelists a little later, in a very basic sense, transparency in the court system begins with mutual respect. i'm proud to say that the 4th circuit has always sought to further a college open relationship with the bar as evidence particularly by this
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conference. in our court's tradition of leaving the bench to greek counsel after every oral argument conducted by our court, then again with respect to that latter reading of counsel, i had a lawyer friend of mine advise me once that in his experience because of his experiences in our court that times he would generally prefer to leave the courtroom by way of a trap door. [laughter] behind the podium rather than visit with the three ups who had -- judges who had just drilled him in a tough argument. in many respects, however, the judiciary has a long way to go in opening up. that's what we will talk about this morning. for 2 million members of the public, simply do not understand the judicial system.
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there are legitimate complaints, of course, that the court sometimes do a poor job of communicating. or are insufficiently up accessible. technology advancementings created challenges for judiciary particularly in managing litigation and striking the balance between secrecy and transparency, and in the age of 24-hour news, with the cable systems, and the internet, there's a larger than over flow of information and misinformation about the court system. almost a century ago, justice brandise offered a prescription. sunlight is the best of disinfectants. as a judge, he was no doubt aware of the delicate balancing of interest that must occur in
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this context. we won't solve any problems today, but our panel will do its best to identify and confront them with attention to practical concerns and real lilings tick -- realistic solutions. one of the issues we will discuss is the appropriate role, if any, of cameras in the appellate and trial courtrooms. at though the courts wrestled with this issue since the first televised trial in 1953, the question arrived in the national consciousness, particularly in 1995 during the trial of oj simpson. we all know that the simpson case was not typical, but some of the consequences of the media coverage of that event illustrates how cameras can transform courtroom proceedings. before the verdict came down in
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that case which was a local prosecution, the president of the united states was actually briefed on security measures deemed necessary to address the potential of nationwide rioting. long zapsed telephone volume declined by 58%. the trading on the new york stock exchange fell by 41%. water usage decreased as people avoided using the bathroom. [laughter] government meetings were canceled. the people who calculate such things later estimated that american businesses suffered a $480 million loss in productivity. many journalists and others looked negatively on the media coverage of the simpson trial, but for millions of our fellow citizens, it provided a firsthand look at the criminal
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justice system in operation, and it sparked genuine interest and curiosity about court proceedings, one that persists today. you will hear this morning about the wisdom of allowing cameras into the courtroom from those with unassailable experience in credibility, but i'll take this opportunity to throw in my two cents. in my view, there's a serious downside because i'm worried that with cameras recording everything, they'll be much less room for creativity. in war stories told my old worn out trial lawyers. [laughter] beside that, cameras are probably distracting, particularly in the trial courts. media coverage, however, is only one aspect of judicial
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transparency. in many ways, the courts can control the flow of information to the public, and we're obliged to do so in a responsible way. we must, for example, consider whether to approve sealed settlement agreements and whether to protect government secrets. we should ask how the interest of justice and transparency are served by the use of unpublished nonpresidential decisions of the appellate courts. we must scrutinize our own practices and our own policies including asking whether judges ought to provide reasons for or against their own recusals or whether we should afford appellate lawyers with notice of the composition of argument panels, but perhaps the best important area in which the courts can open up is in
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outreach in education, and this may be the most important area for the lawyers here and the bar associations. earlier this year, while testifying before congress about the value of social media, justice kennedy explained his view that the law lives in the consciousness of the people. that is an inspiring idea, but it is also frightening. a recent poll, for example, revealed that the average american can name more gummings on american idol than on the supreme court. to reverse this trend, it is critically important that the bench and the bar play leading rolls in improving the public's awareness and understanding of our court system. sometimes we do a better job than others.
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a personal example -- my granddaughter, katie, came to me a few years back with a first or second grade school assignment asking something that i should have been able to help her with. she wanted to know what gummings actually do -- judges actually do. well, for the answer, i took her down the hallway of the courthouse in charleston, to the office of my friend, judge blaine michael, who in his -- and i said ring katie, i got the fellow to give you the answer, and judge michael in his patient way advised katie in response to that inquiry that as best he could tell from his experience her pappy's job -- she called me
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pappy -- that the job of all appellate judges is pretty much simply to sit in a chair and mark things up. [laughter] well, she reported that. [laughter] her schoolteacher was not at all amused. [laughter] with that report of what judges really do. cay tee called me soon thereafter and complained you and judge michael sure got me into big trouble. [laughter] she's now in high school, and she still loves to tell that story about her up qir ri -- inquiry back in the seconds grade about what judges really do. well, fortunately, better efforts are underway.
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since leaving the bench, justice o'connor has been in the fore front, has been a tireless advocate for bringing the courts to the people. in her awareness initiative aimed at school children, is a shining example of how the judiciary can employee technology to encourage young people on their own turfs, and it's aimed at children and other demographics are also, of course, are important. as children grow up, they become adults who like lots of our fellow citizens are disstressful of lawyers, of the jew dish rare ray -- judiciary, government officials, contempt for service, and disstainful of the system. we must hit owl cynicism.
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ours, today, of course, is a broad topic, but the panel will survey and highlight these important issues among others. i'll now follow what i consider a cardinal rule of good lawyering. that is when you have nothing much else to say, it's good to sit down. our first speaker, a man with whom you are all familiar is jeffrey toobin, a distinguished lawyer, author, and journalist. jeff serves as a senior legal analyst for cn and a staff writer at the new yorker and wrote pr files of justices breyer, kennedy, thomas, chief justice roberts, plus articles on such subjects as the legal implications of the war on
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terror, former attorney general john ashcroft, the florida recount, the investigation of bill clinton, trials of martha stuart, timothy mcveigh, oj simpson. his 2007 book, "inside the secret world of the supreme court" was a multiple award winner in a "new york times" best seller. please welcome jeffrey toobin. [applause] >> thank you, judge. good morning, everyone. thank you for having me. i am the only one here who works in television news, so i assure you my remarks will be the briefest of anyone else. i used to be an assistant u.s. attorney in brooklyn new york, in the eastern district of new
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york, and i had a conversation early in my career there that i'll always remember with one of my mentors in the office, a prosecutor, and we were talking about one of the judges, judge eugene nickerson, and he said to me, when you're in judge nickerson's court, you really feel like you're in federal court, and i knew what he meant, and i suspect you knew what he meant because the federal courts are a great jewel of the american government. they -- they are imperfect, but they work better and reach better results than virtually any other part of the government, and, in fact, better than most parts of the private sector as far as i'm aware, and i think that's worth keeping in mind when we discuss the subject of cameras in the court which is what i'm going to devote my remarks to. when we talk about cameras in the courtroom, it's often in the context of what negative things
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will happen? what problems can we avoid? i think those are all legitimate subjects to discuss, but it's also worth looking at it from the other perspective which is what good can be accomplished because the federal courts in our country, both trial and appellate levels, work well, and if they are shown to people by and large, people will see that they work well, and that the people, the litigants who appear in front of the judges and the juries and all the support personnel who work in these courts get a fair shake, and i think that is a real virtue of cameras in the courtroom if they were ever to be brought into the federal system, and it is worth looking at the issue from that perspective as well. now, it is true that federal
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courts today are public courtrooms in the sense that the benches in the back of the courtroom are available to whoever might show up on any given day, but in the sense of modern american life, that is not a public courtroom because the handful of people who have the time, the inclination, the ability to show up on a given day is tiny, and most americans get their news from electronic sources whether it's television, radio, or the web, and to say that a courtroom is public when it is only available to be seen by the people who show up on a given day is simply not realistic as a way of, you know, making the courts available. now, it is true that the 4th circuit and certainly the united states supreme court has made tremendous progress in really a wonderful way in making
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decisions available on the web. you know, i am most familiar with the supreme court's website,, and the decisions of the united states supreme court are really now available virtually instantaneously from when they are announce from the bench, and that is a tremendous credit to chief justice roberts, the court, kathy orburg, head of information at the court. they have done a wonderful job. it is also good that audio is more accessible than it used to be. i know in the 4th circuit it's now a 24-hour rule. at the united states supreme court, the rule is that at the end of the week that the decisions are available by audio, but frankly, that's good, but it's not good enough. those decisions should be streamed on the web live. there is no reason why such important news events, and that
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is really what court arguments are. they are news events, should not be available live, immediately. now, of course, the more controversial question is video, cameras in the courtroom, and i, as i say, believe they should be available. now, when it comes to appellate courts, i think frankly the question is easier because a lot of the concerns people have about cameras in the courtroom don't really exist when talking about appellate courts whether it's the 4th circuit or the supreme court of the united states. you have professional lawyers arguing. you have no witnesses. you have matters almost by definition of great importance because they are legal principles. that is what appellate court arguments are about. you have the ability to plan and install cameras in an unintrusive way. i think cameras in appellate courts would be not disruptive
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at all, and a great public benefit. now, the -- as i say, trial courts are the more controversial areas, and i still think that cameras in the courtroom are a very good idea. we're all familiar with the proposition aid trial that just took place in the northern district of california. that would have been a perfect case, and the trial judges as you probably know tried to have cameras in the courtroom for that case, and i think it would have been enormous loy important. again, the issue at stake was important. you had highly competent lawyers on both sides, mostly expert witnesses opposed to civilian witnesses, and there was no jury, and in all of those considerations, should have suggested that the cameras should have been in that courtroom. frankly, most of the interest in the news media in cameras and
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courtrooms would have been is usually in criminal cases. i'm sure many of you know the casey anthony trial in florida is going op now, and my colleagues at hln, which used to be headline news, their ratings have doubled over the past few months with the casey anthony trial. people find trials interesting and important and frankly, i think it is our business to provide people with fair and accurate coverage of what they're interested in and trials are one of them, and public trials require cameras. now, the question, of course, is what is the potential for disruption? unfortunately, we are still living with the legacy of the oj simpson case on this question. there have been hundreds, there may have been thousands of criminal trials televised by now, but we're still talking about this one case in los angeles that was aberrational in
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every sense of the word. even that case, which i covered and i was in the courtroom for it, and frankly, if you go on yiewb, you can -- youtube, you can look at the verdict, and as the camera pans from oj to the goldman's family, you can see me there sitting there right behind them, and now whenever i look at that video an youtube, i always think, god, you look a lot older now which is depressing but true, but i'd like to just call your attention to a different case besides the oj simpson case that demonstrates the value of cameras in the courtroom, and i think in a very specific way. many of you probably remember the dualo case. an african immigrant in the bronx at his doorstep in the bronx, and he had a confrontation under disputed
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circumstances with four police officers, and he was -- he was shot 41 times and killed by the cops. it was an extremely controversial and insinned yarr case in new york in the late 1990s, and it really had, in many respects, the potential to be the kind of rodney king situation in that there was a lot of -- there were a lot of people in new york that were very upset by the trial by the whole incident for understandable reasons, and that was one reason why the trial had to change the venue. it was moved to albany which frankly upset people in the bronx more because it's as if they were told that they couldn't provide fair justice in a case of this magnitude. the case was in albany, and it was televised, and it was very closely followed in new york, and all four of the officers testified, and the people of new
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york saw that it was a really hard case, and that the officers whose behavior, you know, had been characterized often very negatively, you know, they had an explanation for their behavior. you could argue about whether it was legitimate or not, but the public was educated about the difficulty of that case, and the trial went forward and the -- the four police officers were all acquitted, and the reaction in new york was entirely civil, and i submit to you one reason why their reaction was so civil is that people didn't get all their information from secondhand, thirdhand information, probably distorted, undoubtedly wrong from radio talk show hosts. they got to see the trial themselves, and even if they disagree with the verdict, they understood it, and it was a
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wonderful example of why cameras can be a force for good. now, one argument that i sometimes here from judges about why cameras in the courtroom are not a good idea is that, well, then you get only sound bites. well, if i might say most respectfully, too bad, we live in a country where the private sector, that is to say us, gets to decide how to present our product, not the government which is to say you, decides how we present our product, and i think, you know, sound bites are a part of how we present ourselves, but we also do our best to be accurate and to be fair in presenting the news. i think that is generally the case. there are many counterexamples, i acknowledge, but i think by and large, that the case, and the fact that a public
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proceeding can be televised and that will be edited, that is not a good reason not to disclose, not to report it, and so that's my pitch. i don't expect to persuade a lot of you, but i hope you consider it, and with that, i'll sit down and listen to everybody educational. thank you very much. [applause] >> thank you, jeffrey, very much. it's now a great pleasure to introduce my distinguished colleague, judge barbara keenan. she came to the 4th circuit in 2010 after serving as a judge at every level in the virginia court system including a decade on the supreme court of virginia. she was the first female judge elected in virginia when she won a district court seat in fairfax
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county in 1980, and she's the first female judge on the 4th circuit. despite that history, there's a little known fact about her that i'm going to share with you this morning, and that is judge keenan is actually a west virginian, and i'll leave that point right there. please welcome, judge barbara keenan. [applause] >> thank you, judge king, and it's great to be here. hello, everyone. yes, i do consider myself more than half of west virginian because that's where my family is from, so i'm delighted to be here. bob asked me to talk about three subjects today, and i'll touch on them quickly, but i expect to develop them in the group discussion later. he's asked me to talk about
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education, secondly, electronic media; third, the issue of unpublished opinions. with regard to education, the different surveys on the subject are really pretty staggering in terms of what americans know about the legal system and about our branch of government. nationwide surveys shows that only 50% of americans to begin with can name all three branches of government. fewer than 30% of americans know that the united states supreme court's decisions are final, and almost one-half of americans cannot name a single united states supreme court case, and of those who could name a single case, 90% of them named row vs. wade. we -- roe vs. wade. we need to provide the citizens
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not only with information, but as bob and jeffrey eluded to to instill confidence in our courts as the arbiters and decision makers of many, many vital issues in people's lives, and this process begins in the schools, and i submit to you it begins early. it really should begin in the elementary schools, and i think for that reason, justice o'connor is absolutely directly on target on where to start. we shouldn't be waiting to the high school, and i spent a lot of times going into schools, and i know a lot of you do too, and the best reason for me to do is is it's just a lot of fun. it is so enjoyable to hear kids, to exchange ideas with them, and in my personal experience, i really saw a lot of power in terms of diversity and who brings the message to the audience. one of the most frequently asked
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questions i get from elementary school students is can boys be judges too? [laughter] of course, i answer very earnestly, yes, if boys work extra hard. [laughter] they can be judges too. [laughter] really i think that the important point here is that the students are associating our profession with the speaker, with the messager, and they're asking themselves and thinking can i, a person like me, be chosen for the job? so it's important for all of us to bring our diversity and our rich backgrounds into the schools. one other very favorite question i get from elementary school students, and it's actually a bit of a stumper. they ask, can judges use common sense? it's kind of interesting to
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formulate an answer, you know, that sounds reasonable. with regard to high school audiences, the questions are a lot more diverse and sometimes they are very focused involving locker searches, and, you know, the very personal issues, but then they start asking about international law, privacy issues, and really a great wide scope of issues, and so in asking you to bring the message to the students, i suggest to you that there's some resources that make it very easy to do this, and i have an online outline that lists a lot of these resources, and if you are willing to go into the schools, just take a look at that outline, and it has enough information, you won't need toot any advanced preplation -- need to do any advanced preparation. one of the best reasons for going into the high schools is a "new york times" article entitled "10 u.s. supreme court
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cases every teen should know." they give you a teaching element for each one of the ten cases. the cases deal with again student searches, school prayer, censorship of school newspapers, drug testing for student athletes, affirmative action, and then the one that the students are always fascinated with, and that is that teenagers can be tried as adults in criminal cases. they almost never think about that, and then as judge king mentioned to you, justice o'connor's icivics website is just fabulous. they play games, can be a president of the united states, can be a partner in a law firm, or a member of congress, and they have to make decisions based on the law in these specific roles that they've chosen, and kids love it. i really commend that to your attention too. with regard to adult outreach, i
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think the bar has done a wonderful job in the various states in the 4th circuit in bringing messages in terms of how lawyers protect the rights of citizens, particularly the more vulnerable citizens in our society, children and the elderly, and the disabled. i think the bar and you as members of the bar are doing a great job already. i exhort you to continue in your service in this wonderful regard. it's so important in terms of the future of our citizens, and it is just a wonderful personal opportunity to reinvigorate your belief in the law and to teach people who are eager to learn. with regard to the electronic media issue, the -- as you're well familiar, electronic media generally are not permitted in the federal courts. federal rule of criminal procedure rule 53 deals with
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that specifically, and the judicial conference has taken action. actually in 1996 to lift the ban with regard to federal appellate courts, but to date, there's only two federal circuits, the 2nd and the 9th that allow broadcasting from the courtroom. in 2010, i guess we heard this yesterday, you may not have heard this, but the jew diecial conference is den -- judicial conference is engaged in a process to involve the federal district courts and the program will be within the trial judges discretion to allow the cameras and the consent of all the parties to the proceedings will be required. the court, not the media will operate the cameras, and the recording of the members of the jury will be prohibited. it will be interesting to see how that develops. the issues in the united states supreme court with regard to
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broadcasting until very recently has been mostly mountain state court system. in 1965, the supreme court in este vs. texas held it was a due process violation because of the disstrexes of the electronic broadcasting system to televise a trial over defendant's objection, but then 16 years later in chandler vs. florida, a unanimous 8-0 vote of the supreme court held that it was not an inherent do process violation to broadcast over defendant's objection. within 16 years the supreme court vir dually -- virtually turned around on the subject. as indicated the big case regarding the federal court came down last year where the supreme court considered the stay that the defendant's asked for in the
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proposition eight gay marriage case in the northern district of california, and in that case, the -- it was as if i thought a very, very interesting decision that the supreme court came out with. the basis for the court's decision was that there hadn't been enough time for comment on the local rules that was required in order to permit the broadcasting, and the majority of the supreme court in an unauthorred opinion said that there just wasn't enough time to comment, and then added as a secondary reason that the court would be discussing a lot of sensitive subjects such as gender equality so i thought that was, you know, a little bit of a interesting rational, and the dissent came on very strongly, and said, well, you said that the comment period
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wasn't long enough, but you received 138,574 comments. you know, how many comments are required? that was the dissent of justice breyer joined by justice ginsberg and sotomayor. it was divided on this issue of the access that judge walker wanted to permit, and then i guess as often the case in federal district courts, judge walker had something of a last word on the subject because he permitted the reporters to send tweets from the courtroom of the proceedings so it's an interesting issue that's developing in the federal courts, the use of the broadcast media. in the state courts, it's a lot more settled, and virtually all state courts allow the broadcasting in at least appellate courts. now, in practice, that doesn't
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happen too often first because i think there are not as many requests at the -- even at the appellate level. my experience in the supreme court of virginia was that the probably two criminal cases a year, maybe three at the most, would there be a request for a broadcast. in the state courts, there are very few trials broadcasting and this is something that we'll be discussing as a group here, the inherent difficulties and how quickly things can go wrong and how in the context of a jury trial, judges really have to be managing a lot of different things at once, and if this happens on tv, how it tremendously complicates the dynamics. with regard to the appellate broadcasting, my experience was it just didn't make difference to me as an appellate gumming. you do the same job, ask the questions, and you really lose sense that the cameras are there, but i know i'm speaking
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for myself only and not my colleagues. i know my colleagues don't all share this point of view. i think it's a very interesting argument for our panel discussion that we're now living in an age where regrettably the decline of the print media is astonishing. in 2009 alope, 100 newspapers closed and 10,000 newspaper jobs were lost so there is this large vacuum or deficit, whatever word you. to use -- whatever word you want to use, where people traditionally brought the information to the public are not available to do so anymore so does broadcast then step in and expand? if so, under what constraints, and if not, what else do we have to bring the message to the people? i think it will be a good subject for our discussion. lastly, i'd like to touch very briefly on unpublished opinions. it's kind of -- as we say in the washington area, an inside the
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beltway proposition. you know, it may be more interesting to judges and regular practitioners in the appellate courts, but i think it's of interest of trial judges and to trial attorneys because exactly what use can be made of the opinions should the court be publishing more? i think these are very important questions, and as you know, the under federal rules of appellate procedure 32.1, after january 1st. 2007, the opinions can be cited even though unpublished opinions can be cited. citation to opinions is disfavored other than law of the case. in the 4th circuit just about over one-half of the cases orally argued are published, and generally the decision whether to publish is made by the opinion author and the opinion
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author frequently gets input from the panel and when the case is circulated for information purposes to the other members of the court, sometimes they weigh in, but it is the panel decision and most generally deference to the author of the opinion regarding whether the opinion will be published. in the fourth circuit, according to pat connor, our clerk, 9 #% of the cases are decided by unpublished opinion. this is the summit of some controversy, and i think we'll talk about it in our panel, and it's a hard tradeoff i argue for court, and we'll talk about this more in detail, but when you have an appeal of right, you have a huge volume of cases, and you have a lot of largely repetitive cases. in a state court system where you have a writ system like we had in virginia which was much like the supreme court of the united states, every case that
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was orally argued was a published opinion, and every lawyer got a chance -- a 10-minute oral argument in order to convince the court to take the case for full consideration, but as a tradeoff, the cases that were not orally argued were disposed of simply in an order of blanket affirms. while there was more than publication of opinions and certainly more oral argument because anybody who had a case could at least argue at the writ stage, 75% of the cases were decided without anything other than an order of affirm. which is better? i think that offers a difficult question for our continuing debate. those are my basic thoughts on the three subjects. i'm looking forward to hearing the panels' observations and also hearing questioning from
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you. thank you very much. [applause] >> thank you, judge keenan. our next panelist is the man behind the web's first and most popular blog on appellate litigation. how appealing -- he's an accomplished apalate advocate in his own right compiling great success in the federal and state courts. howard speaks to us today as a practicing attorney, as a representative of the knew media, and as one who simply has his finger on the pulse of our federal courts. please welcome howard bashman. [applause]
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>> thank you, judge king, for that very kind introduction. in addition to working as an al pell lat attorney in pennsylvania, a suburb of philadelphia, in my spare time since may of 2002, i have maintained a website or blog known as how appealing or on a daily basis i link to state and appellate decisions of interest or that are newsworthy and link to articles about the judicial system and commentary about cases in the judicial system. thousands of lawyers, judges, law clerks, law professors, law students, journalists, and others visit my site every day. if i am here as a representative of the so-called new media, it is a testament to the openness of the federal judicial system because the federal judicial system has made.
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s, at least the appellate level readily on line. nearly ten years i've run my blog, federal appellate courts have posted their opinions online free of charge over their websites. indeed, as we heard earlier, the fourth circuit deserves special praise for recently deciding to make available oral argument recordings through its website to let people what goes on in court who cannot be there in person. now, notwithstanding the many positive things that i could describe at present, certain easily implemented improvements in openness can still be made. i'm going to focus on two in my remarks this morning. one involves the federal districts courts within the circut and the other involves the 4th circuit itself. unlike federal appellate courts go to their website, click on
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links directly to opinions without having to log-in, identify yourself, you can freely access any opinion that's come out. the nine federal distribute courts within the circuit have different methods to say the least of opinion access. not surprisingly, each federal district court has its own website. under the so-called e-government act of 2002 that the congress enacted, federal courts both trial and appellate, must make their opinions available online free of charge, and there's a system nope as pacer which i think stands for public access to court electronic records, that people can sign up for and subscribe to over the internet if you have a credit card. now, i'm sure everyone in the room including myself has many credit cards, but not everyone in the public these days can get a credit card so that's one way
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of already unfortunately limiting access to judicial decisions if the only way they are available online is through pacer. let me walk quickly through the nine different websites within the circuit and describe what my own informal survey conducted over my laptop here has disclosed. the district of maryland, to take them in alphabetical order, does provide free access to all opinions without any log-in required whatsoever if you know where to look. on the home page of the maryland's website, there is no ling to opinions. . s are available under the link, case information. thankfully it occurred to me that i should look there to see if opinions are available, and that's where they can be found, but if you know where the look, the. s are freely available without log-in. turning next to the state of north carolina where there's three districts.
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the eastern district does not make any opinion available online through the website out log-in required. if you want to access opinions, you have to have a pacerring the and log in order to find the opinions, and you have to know how to find them through a pacer account which is not something that's readily described through pacer. the same thing can be said about the western district of north carolina. no opinions freely available over that district's website. the middle district of north carolina, i'm happy to report, does provide access to some selected opinions. how opinions are selected is not something that is described, but if you are looking for a selected opinion, that, you can access free of charge over the website, but all opinions from the middle district of north carolina are not available free of charge from that court's website, only some of them without a log-in being required. turning next to south carolina which only has a single district. no opinions are freerly
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available without log-in to the website. turning next to virginia, the eastern district of virginia. direct users to pacer and explains that if the district judge has uploaded an opinion in a manner that describes it as an opinion, it will be available free of charge through pacer, but if the judge has uploaded an opinion in a manner described something other than than opinion, you're charged eight cents a page to gain access to that document. now you might think, how can a federal judge not describe an opinion as an opinion when it's being uploaded? well, when i got here wednesday afternoon and logged into my computer, i wanted to update my blog in the event there's newsworthy developments, and low and behold, a federal distribute judge located in the southern district of florida issued a decision just getting reported in the media declaring
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unconstitutional under the u.s. supreme courts decision in ring vs. arizona, the method in which floor juries in state court decide to implement the death penalty, decide to impose the death penalty against the defendant. a federal district judge in florida issued an opinion that declared the florida death penalty unconstitutional, and that would possibly affect the casey anthony trial, and this decision was 93 pages long as the news reports were describing. i went to the website to look for the opinion. they do not make opinions freely available by clicking on the website. i had to log-in into pacer. next, i looked for new opinions out through pacer, and this decision was nowhere to be found. fortunately, i believe the associated press reported the docket number of the case, so i we want into pacer, called up the docket of the case which
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itself is a charge of eight cents, a minor charge, but a charge nonetheless, and i saw there was the decision, and this decision was docketed by the district judge in the southern district of florida as an order, a 93-page order requiring me to incur $2.40 to get the opinion. i down loaded the opinion, put it on my blog, and now this decision is freely available to the public in a way that it should have been freely available to the public as of the time it was issued so this is just one way to describe how even the pacer system is not a perfect system in providing free access to opinions. again, to get back to this circuit, the eastern virginia website explains through pacer you get free access to opinions if the judge has described his or her opinion as an opinion. happily, the western district of virginia, like the district of maryland, makes all opinions freely available through the
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website without log-in whatsoever, and there's a link districtly from the home page to opinions so you can get opinions very easily. similarly, the northern district of west virginia provides free access to all opinions directly through the home page of the website without log-in. the southern district of west virginia gives free access to published opinions only, but not to all opinions without requiring log-in. my first suggestion today is that when the judges and other employees of these ports get back to their offices next week, you take a look at your website and you see ten members of the public get easy access to our opinions in the way they are supposed to be able to do under the e-government act of 2002 without sharing their credit card. i'm sure many members of the public wake up in the morning thinking today what i would like to do is send my credit card
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information to the federal judiciary to gain free access to their opinions. now, let me turn next and timely to my own inside baseball topic which is with regard to the fourth circuit, the issue of learning who is on the oral argument panel. i'm going -- i'm an attorney who practices in pennsylvania in the third circuit and throughout my career, i'm accustomed to a system where approximately two weeks before an oral argument date, i'll get a letter or e-mail with lings to gain access to electronic letter that says will the appeal be orally argued or not, and number two, identify who the judges are on the panel assigned to the case are, and, in fact, throughout the entire federal level in the 13 different u.s. courts of
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appeals, 10 of the 13 federal courts of appeals follow that same procedure. in fact, i believe in the dc circuit rather, you learn who the panel will be before the case is briefed which is the one circuit that tells you way, way far in advance, but at least the time before you get to court, you know who the judges are going to be, but not in the fourth, seventh, or federal circuit. what's the reason it's done this way? the answer i hear most often is that that's the way it's just always been done. there are reasons with more of an explanation, but let me begin by explaning the benefits from an advocates per specttive by knowing the panelists in advance. it allows the advocate to prepare knowing, perhaps the likes and dislikes of the judges assigned to the panel, the background of the judges, and to take into account whether those expwrujs play -- judges played a role in whatever
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to determine the outcome of the case. even more importantly, it provides someone who perhaps is not a repeat player before the court with more of a level playing field in being able to have confidence to come in and give an oral argument. i can assure you those who argue all the time in front of the fourth desire cut have a good feel for likes and dislikes and ready to be able to implement that knowledge without having no know in advance where people from other places for the first time ever coming into court, they will not have that ability, but if they knew in advance who the judges would be, then the playing field would be more level. perhaps even most importantly in the case where this comes into account, recusal issues and determining whether judges should be rescued is not something that is left to the judges solely. of course; the judges play a very large role in determines whether they need to rescue from a case and they have methods in
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place for determining that in advance, but in cases where the judge's identities are known to the lawyers and the parties in advance, those lawyers and parties can bring to the judges' attention recusal basis that the judges may have overlooked. the recusal system when operated by the judges does not always work perfectly and after oral argument, there's different competing interests in deciding whether an attorney draws to the attention the recusal basis. the judge is telling me that he disagrees with the other side's position, and i go back and tell my client saying judge so and sew disagrees may have a reason to be rescued from the case and my client gives me a stern talking to about why not to rescue the judge so and so from the case. if judge so and so's involvement was known before oral argument,
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that could have been brought to his or her attention at that time. similarly, after the fact, if the judge in question seems to be opposed to the own side's oral arguments, it's rather touchy to bring to the court's attention there's a basis for the judge to be recushioned because you can be sure the other side does not look favorably of that being brought up and the other gummings take a dim view as though you are playing gamesmenship than assisting the court in performing its proper role. now, the responses i hear back from judges who defend the system that's currently in place within the fourth circuit is that, of course, lawyers can be prepared for anyone to show up. that's true with regard to the 4th circuit judges themselves, but this court has gummings who visit, sit by as visiting judges both from within the districts of the circuit and outside the
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circut. there's no way to be prepared for any federal district or kir cut judge within the united states to be on your panel or retired justice from the u.s. supreme court. many judges feel that lawyers will improperly try to pander to the court or engraishuate themselves or favor in a way not proper by saying judge so and so wrote this opinion and that governing the outcome here, and the 7th circuit with oral argument audio available over the internet for many years now frequently happens even though they don't reveal their identity, that lawyers go in there and try to do that, and if you say that to judge posner, they give you a stern talking to right away. anyone on the court is equally as capable as i am to understand what that decision means, and that's the truth, and i totally
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subscribe to that view, and i think that's the judges within the 4th circuit to educate the lawyers as to the proper way of arguing to judges, and that's the problem with pandering or ingratiate is not solved by releasing the identity of judges in the oral argument. as i wrote for the philadelphia legal newspaper, if judges don't want the lawyers to pander or argue, they can sit behind an opaque screen and have their voices distorted lek tropically as -- electronically as if they are mofia testifying in front of congress. the answer to the problem is not to identify the judges on only on the morning of the oral argument. in fact, if the judges don't want to lawyers to know who wrote opinion, the court can issue all decision z as a procuriam.
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in order to level the playing field to allow lawyers to prepare in the best possible way in my view and to allow the court to benefit from recusal input generated from the lawyers and parties before the judges have heard the oral arguments, i think that this court should seriously consider trying out for a year or two a method where the pam identity is revealed to the lawyers sometime in advance, not way in advance so that the lawyers can try to rig the process and get on to a different panel, but a week or two in advance where the lawyers have the date crossed off on the calendar as a date to be in front of the judge and the lawyers understand it's not a basis to get out of that oral argument date to get a different oral argument date in the future. in these ways the 4th circuit and federal district courts within the kir cut could increase public access to their
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rulings and increase the efficiency of the system and could allow attorneys, themselves, to be as useful as possible to the court in oral argument. thank you of your attention. [applause] ..
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>> i am pleased to be here this morning at this lovely location in my home state of west virginia. it is a special honor to appear here with judge keying with whom i were 20 was united states attorney attorney, and has remained my friend and i learned a lot when i worked for him and from him over the years for, when i first became a prosecutor knew could tell you had a big case when
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closing arguments can other prosecutors with come down the hall to watch you in the courtroom and you had a really big case when the charleston gazette sent a reporter to cover the trial. back then i could not have imagined in the day would come you could watch a trial through a computer screen or cellphone sitting at the airport or in the starbucks with a coffee in your hand i cannot imagine a day would come on this wondrous inventions the ipad all kinds of items in the court and what color sue somebody is wearing a are why the juror was late because they had a doctor's appointment i could not imagine there would be a public website call the who is a rat that exist for the purpose of exposing the names of people
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who cooperate with law-enforcement for no purpose other than to cause harm to those people. modern technology and today's media have dramatically changed the way the public and litigant's interact with and learn about the courts. i applaud the accord to for recognizing the time has come to ask ourselves are using the best technology and at the same time are we remain mindful of a balance crucial to the competing interests to the public's right to know and the government institutions with protecting individual rights whether eight public trial
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or a victim right to privacy and to preserve the integrity of the judicial process in the department of justice this is the important issue and me as who executive officer of united states attorney's part of the department of justice starts from a position of happens before the court should be open and accessible and transparent. the united states attorney's manual contains much of the department policies provides that careful way must be given any case to the constitutional requirements of the free press and public trials as well as the bite of the people in a democracy to have access to information about the conduct of law-enforcement law-enforcement, prosecutors and accords consistent with the individual rights of the accused. for the recognition should
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be given to the needs of public safety come apprehension of fugitives and the rights of the public to be informed on matters that can have enactment of and enforcement of public lives and in conducting a careful balance u.s. attorney manual advises carefully should be given in each case to the rights of victims and against as well as the production of safety of other witnesses. to this end, the court in congress has recognized the need for limited confidentiality in certain areas such as lot -- ongoing law enforcement operation operation, the state secrets. for its part they have to establish policies to ensure attorneys deviate from the principle of openness to seek confidentiality only when clearly necessary and
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only to the degree necessary. sonat was standing the general principles, we take steps every day to strike the right balance between the competing interests between openness and privacy. we all share the duty to protect private information like social security numbers, tax information and you cannot even file a notice with the substitution without checking the box acknowledging the obligation to reject private information and court documents. the public's ability to access documents is a phenomenal development and a goal of achieving openness but it implicates competing concerns. on the one hand public access to information about the courts has never been
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greater with the availability of court documents and document -- dockets almost anyone can access with a credit card. on the other hand,, the accessibility renders ineffective protection of what we call practical of security, the idea of the information is publicly available, the difficulty of compiling such information and the extra effort needed to go to the courthouse afford some measure of privacy. for example,, a plea agreements income bookcases may contain information about a defendant who is cooperating with law enforcement. with websites like "who's a
1:08 am" brings down the integrity and victims maybe reluctant to participate in the process knowing the testimony may be broadcast far and wide across a wide range of media so it is important to have balance raise to protect privacy of of four dain but again is fair and open trials. in addition to preserve the integrity of the criminal-justice system requires the department of justice with ongoing investigations if law-enforcement agents could have a long term the investigation, no one should jeopardize that investigation by exposing preserve a. nobody should destroy evidence lowered to a car inflection for those they
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believe may have turned on them or should not be alerted to any pending investigation and time to arm themselves to resist from law-enforcement officers come to arrest. another reason we seek to prevent disclosure about ongoing investigation is the information about allegations that may turn out to be unsubstantiated. we don't want innocent people to be tainted by disclosure that we are under federal investigation. for this and other reasons the law has struck a balance was wiretap applications and search warrants. when we come back full circle to the starting point* there is an extent we can take percodan may not be enough to unlock the doors but to stand back and wait for people to take initiative. even though the courts have
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been open, the reality has been very few people are willing to go to the courthouse to what should trial or put the nickels and a copy machine to make copies of the civil settlement that now it has been replaced by a few keystrokes or in some instances the press of the tv remote. also relying on the media what is happening before we had 24 power news channels there was not always space in the newspapers are time in the newscast to get the big picture or the small details. the current reality is the general public will get the legal news from tv by logging on to the news website according to research the majority of americans get their information from the internet surpassing
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television with those under the age of 30. rather than looking and media as the sole source of information for affirmative justice has taken steps to use the tools to become more active storytellers last year in response to the president's directive the department of justice along with other agencies adopted the open the government plan one of the things it has pledged to do in the open a government plan is to release more information about the representation of the united states courts where the public has relied on third parties to have brief descriptions of what we have done. in this effort to provide more affirmation to the public at the united states attorney the state's attorney's kennedy launched a page called the briefing room which highlights the work of u.s. attorneys' offices across the country.
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it offers news, statistics, op-ed and other significant efforts offices have taken with department priorities and initiatives. the website we hoped would enhance the public's understanding the work we do to enforce the federal laws to represent the interests of the united states. hoping the public to understand the work the department is much more than talking about cases be prosecuted and defend progress few days ago the department launched a new website called prime's which it is a surge of on-line database of evidence based programs designed for police chiefs chiefs, practitioners and politicians and policy-makers what works and criminal-justice juvenile justice and deciding whose information and 150 programs
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with justice related topics it also provides evidence ratings evaluate and the competency rating defective to indicate where there is evidence for research is one way the department uses technology to disseminate state of the hour knowledge and practice is around the country to foster justice programs that translate evidence into practice. open government does not just inform the public. one of the goals is to find solutions to share solutions to improve the federal, state, and local justice systems fact we should embrace the communication tools at our disposal and used them to educate the public. but we must use the responsibly balancing the right to a fair trial, the right of the public to know and the government's ability to effectively enforce the administration of justice
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for coke we should be optimistic public confidence in the judicial system as they learn about the work that we do every day. thank you and i look forward to our discussion and questions. [applause] >> aranesp analyst is the action oriented district judge from south carolina. a shining example to those on the appellate court for the zoo market up. 1986 when he was the mayor at 36 years old, judge anderson was appointed by president reagan which i and a stand makes him the august federal judge in the history of the state. fortunately for us he is also a scholar with the subject of secrecy in the
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court system and is a steadfast advocate of transparency. please welcome judge anderson. [applause] >> they do judge king if you go to the electric doctorate looking at zero '03 687 doc #1 entry appears on the screen. that is the caption of the case that reads sealed vs. sealed. it appears that way there was an order as that provides as follows, the entire record in this case except for this order including pleadings exhibits hearings transcripts employer opinions will be sealed and access to a proper sense other than the parties to this case should be heard only upon further
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order of the core. we're all two of the debt of gratitude judge king for this topic we all agree the judicial branch is the least understood of those of the government and effective system of horror resolving disputes is a large measure of sustained public confidence. and it is hard for the citizenry to have confidence in a system that it does not understand. part of the reason i said it is our own fault we speak are on the bridge and follow ancient traditions fancy to administer justice without concern for what we do. sometimes, in some cases we slam the door on the public to information about the case in the procedural history. it is the last component that i call government forced secrecy the five would like to speak to this
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morning progress question to what extent judges should order confidentiality is one that has troubled courts and policy makers for years. the events of the past decade involving court sanction confidentiality of products them into disrepute by keeping affirmation about public safety at of the public domain for events such as these, lawmakers say and fettle to have draconian sunshine litigation laws that should also cause us to take a fresh look at the existing practice seeing any things that they request to have sealed. there are many occasions and
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the jade secrets state secrets they all deserve protection and due team they entered information and a difficult question occurs as they always do much more than a contamination case but only if they into the order requiring the destruction of all documents and a gag order to discuss the case never within a one. does the judge have the application to the legal system at large your two future of the defense demanded in the affected area who may need the information developed in the first case? oppose the judge presides over the settlement of inaction of a teacher who molest a child and told the case will settle on if the judge goes along with a confidentiality order imposing a total ban what is
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the judge knows a teacher intends to remain in a classroom? says he signed a confidentiality order? these are hypothetical case is but let me give you real-life examples. july 2004 johnny bradley and his wife navy recruiters began out cross country trip to pensacola. having followed the news accounts of firestone tires and the dangers associated that recently came to light he chose to equip the ford explorer with cooper tires and had the vehicle tech data local repair shop before leaving for florida. while in been in mexico which read separated on one of the tires, the vehicle rolled four times killing the wife is a late and rendering johnny unconscious
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for two weeks ago he missed his wife's funeral perhaps then did he learn that cooper tires such as the ones on his vehicle had also been the subject to more than 200 lawsuits and also almost all of the documents were kept confidential to cut vital information from the public that could have prevented this tragedy. he presented this information to a congressional committee two years ago. 2006 of lowered the judiciary added 1/3 to the lexicon to super seal. that term was coined by a "miami herald" reporters at 310. >> host: maintaining a secret pocket consisting of 200 cases they included negligence in malpractice and fraud that vanished into
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black coal that is impossible not to tell only what was then the but they had existed at all. when i first read about that i remember back to the movie men in black where the memories dapper would be raised the memory of witnesses some zero owe they voted unanimously to adopt local rules that provided modest restrictions when it was first ruled with public comment reactions were swift and the rhetoric was he did. the debate revealed the camps were deeply divided with little hope of alternate dose of acceptable to both sides. one suggested the members were modern-day thomas
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jefferson's. another writer on the other side suggested the american soldiers were 588 and part to prevent the type of privacy invasion the anti-secrecy rule would bring about. this is the first time i've learned sadam hussain
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a few words to think about it that means secrecy eric -- secrecy negative van forstmann secrecy is a commodity with the market value bought and paid for not just beneath the judge's nose but his complicity and in my view they do not operate to engage in a system where the dead judge's signature is for sale. what to the party's gain by the order that cannot be accomplished by a mutual agreement between the parties? obviously the first thing that comes to mind for
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anyone who violates the court order. some literature suggests other motives may be at play as well but imposing obligations on businesses they go to the cpsc were the joint commission on health care accreditation and north carolina and news reporters suggest the under reporting to the agency's is rampant and suggests some of the time, and not all of the time companies are hiding behind the judge's signature failing to disclose the information hiding behind the gag order they invited the judge to sign. first they said that against should not share their privacy rights at the
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courthouse door and tell it again should be agreed to keep things confidential this argument misses the mark because it had nothing to do with bilateral agreements and confidentiality but court orders to maintain confidentiality and the argument advanced suggested in our district settlements would vanish to say if this goes into affect you will draw hundreds of cases in the next couple of years. it suffers if lawyer's word deprived to air their dispute in a public forum and a public court room we
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now have 10 years of experience and guess what? our entire court collectively has not tried hundreds of cases. rather the civil trials have continued to spiral downward just as they have all around the country. may have tried far -- far fewer cases in the 10 years since the role has been passed then in the 10 years preceding. the final argument advanced was the economic argument said the business committee would avoid south carolina if the sunshine role went on to the books. new business development has gone up each of the past nine years. of you don't leave me drive by the new boeing plant the next time you're in charleston or the amazon distribution facility that was broken ground several
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weeks ago or the bmw plant there recently announced a new production line of another 260,000 cars per year. and that of the dire predictions came true. and south carolina life goes on, colonel sanders secret recipe containing 11 herbs and spices is still safe for public safety is promoted and i think the public has more confidence in what we do. i have been called upon to cages to testify before congress in connection with their proposed federal sunshine litigation and legislation which would go far beyond what we did and south carolina particularly in relation to confidentiality orders on discovery. i have heard did dramatic testimony of john a. bradley and others who'd experienced similar tragedies to emerge
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congress to intervene but if we don't take steps to keep the house in order we will wake up one day with more draconian laws on the books even sunshine proponents admit will go too far program cautiously optimistic we have passage to pinpoint of secrecy although i think the national debate make judges mindful of the mischief that comes into play when reassign productive orders without good reason. when judge interviewed was quoted as saying in the years passed she would sign the order saying the moon was made out of cheese if it was necessary to settle a case by now she has changed her mind for pro now the center came out with a booklet and 2010 a pocket guide that makes us for the
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first amendment of common-law come into play when reseal parts of the record. but no speech could doubt -- would not be complete with a legal citation but the 1677 concession in agreements of west new jersey which was a formative document for the state provided all public towards any person may freely come into and attend the accord so that justice may not be done on a secret corner were in a covert manner. and my father taught me rethink the founding fathers got right. thank you very much. [applause] >> >> the final panelists' comes to us from the university maryland or she is a distinguished professor and as a scholar she would
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is written in areas of civil-rights come of voting rights judicial diversity and decision-making at she is also a national recognize litigator and frequently appears on television and radio to discuss the court system please welcome professor ifill. >> i want to thank judge king for the invitation to be a part of the panel i do not want to thank him for being last i have been cutting as i go but let me see what i can contribute to the subject before we have our discussion in. i should say at the outset i take very seriously the name of this panel opening up it is my sincere hope that you will truly be open to be
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opened that maybe some unaccountable reality is about transparency that we have already heard in our cards but in the hopes we can together at imagine to promote greater openness acceptance and appreciation of judging on the federal bench. it seems there are two potential audiences at issue talking about if the courts could be more open and understood to determine who we are talking to. understood by home? i am sure we will spend a good deal of time talking whether the media understands what the judges do when we have our discussion as well as those cases decided, like to begin by suggesting we begin with exploring whether courts could be more open and better understood within the profession because it is those of us who practice the first and most knowledgeable ambassadors of the court system.
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and judge king already alluded to this with his opening rear marks and others have as well, recusal is one of the most important points of communication between lawyers and judges and easy to do with the the context of actual bias where the judge has a financial interest or hold stock and the corporation that is related or counsel to one of the parties. the greatest difficulty is when the judge's impartiality may reasonably be questioned or the appearance of bias a standard as justice o'connor explained in the unrelated context appearances do matter. the statute governing the appearance of bias standard makes clear a bad judge should withdraw when the impartiality may reasonably be questioned. of the statute does not
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indicate judges should wait they should not wait promotion to refile but the judge should be prepared to disqualify herself a very reasonable person would believe that a judge may not be able to impartially decide the case. of course, the stakes are higher when they decide to seek a recusal the judge must sit in issues of the reasonable person per although i hesitate to say this before this audience commit is important to remember federal judges are not reasonable persons. i do not mean that you are not irrational but what appears to a federal appellate judge as the appearance of bias differs greatly how it may appear to a reasonable person or unreasonable lawyer when good judge declines to recuse herself has tremendous anxiety for the lead against and we may spend some time talking
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about what should happen when a judge denies the motion to reduce pressure the federal courts have a recusal panel made up of retired judges who may make recommendations in individual cases that could be a firm during adopted by the court? but the most important and sustain communication isis within the framework of the judicial opinion and talking about unpublished opinions i am sure we will talk about them more. the judicial tenure provides a critical space to explain contentious issues and navy of the reasoning and explore alternative arguments and even to speak directly to the parties, legislatures are two other courts for about judicial opinion is becoming the endangered species. according to recent study for a five decisions are made without an opinion and the figures are higher in
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some courts including the circuit as the judge explained earlier. this is an enormous blow to transparency and has the possibility to threaten the integrity of our judiciary in the eyes of the public. i like to pull the thread about the statistic of published opinion to explore the reasons to think how we might address it. as you know, you simply could not write opinions for all of the cases that come before the fourth circuit court and the federal circuit. there is the imbalance between the docket of federal judges and a number of judges and justices in the federal court. the reason is some uncomplicated but congress has made a set of political positions to put unbearable tension on the judicial system beginning in the '80s
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congress war on terror drugs everybody from baltimore house to mention etfs but congress began to increasing the federalize crimes here to for fall within the province of state law while i don't intend to engage in a large critique there is little discussion between the enactment of new federal crimes and the federal courts. for those federal cases, a criminal case is a constitutional requirement is they received a speedy trial and this has consequences for the work and transparency of accords brought the time congress has been reluctant to increase federal judges of the circuit to carry the increased workload of the federal criminal cases but in fact, they sometimes have been discouraged to add judges by the judiciary itself up for the most part starving the federal judiciary is a badge of
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honor and and no party wishes to increase the judiciary when the opposing party is in the white house or controls congress so we have a stalemate. the insufficient number of pedal judges has the practice is that further raise questions about transparency and openness. do so central staff attorneys to handle all habeas cases is a longstanding practice betting raises uncomfortable questions of the exercise of judicial authority by attorneys not subject to confirmation in process or the consent of the senate and i am referring to a standard chambers clerks who work for water two years providing invaluable assistance to draft opinions but instead of clerks to work for the judiciary rather than individual judges in those responsibilities from screening cases to drafting
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recommendations or opinions that routinely are adopted by judges. i have fed working on a study on the use of central staff attorneys so if you received a questionnaire i hope you respond. i don't wish to impugn the work they survey critically important role to manage cases of every federal circuit and the work has become a viable to the running of the courts but the increased use was created and necessitated by the fed if congress to sufficient may allocate judges to dispose of the increased caseload created by congress decision of criminal justice and the consequences the decision-making structure that exist outside the understanding of lawyers and again to use the federal system. the importance of the judicial opinion to how the public understands it is on
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rare display two weeks ago prime want to give this example because it is responsive to the point* made earlier about cameras in the court room. it is my opinion in the opinion is a principled most important means by which the court can transmit the understanding to the public of what it does in a rare opinion issued by a trial judge two weeks ago the court released an opinion accompany the conviction of the off-duty police officer for the killing of a patron who grow up to the officers girlfriend and criminal cases involving police as defendants are very public kabbalah taebo and the judge issued the opinion accompanying his decision to convict the officer of manslaughter. it was an example of high artistic pros but explained the judges thought process
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stomach including the officer had not committed first-degree murder but not acting in self-defense the decision was hailed by many members for the clarity and explanation how he weighed the evidence and what he saw when he visited the scene of a crime and some witnesses were credible and others not. i believe that as a result of that opinion the verdict was didn't have the regular anger that cases usually generate. 15 applied about the importance of judicial opinions and specifically at want to make the argument in favor of multiple opinions in favor of concurrence and dissent. of foia support the unanimous opinion many cases in which the court ways into the contentious area to demonstrate the full power of the course stands behind the decision mike brown v
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board of education or the nixon watergate tapes that i have thought one of the most disappointing aspect specs of bush reverses obligor decision was the ability to cohere around one opinion but it is true that concurrence and a sense engages the car with multiple perspectives and it demonstrates to the public they are not inevitable but part of the process that is less certain than a strongly worded majority opinion may suggest record 10 years ago judge king it issued a concurrence of a case that i lost record of of a challenge by black residents of a community to the dead deciding of the bypass the highway leading to the ocean city beach. my clients were prepared to demonstrate the decision to
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construct a bypass at the proposed location constituted the third time in 60 years as they had chosen to route to the highway directly through or adjacent to this community. we lost on the statute of limitation grounds but judge king wrote the concurrence that began to write this to express my views of the shabby treatment afforded the residents lowered jersey heights by the state of maryland. we lost the case because of the concurrence i could not convince my clients we have not one. for them judge king that was evidence they had been heard even of the claim could not go forward they had their day in court. ninth accompli of viable role to help litigants' understand from our help with the discussion we have the opportunity to address other issues alluded to and i think you once again for having me.
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[applause] >> tata we don't have quite as much time left as i had hoped for the following discussion now want to turn immediately to the cameras and a court room. it seems to me that jeffrey toobin is used to having cameras in the trial court rooms and in the appellate court rooms and he could speak to that in a moment but of a bike to hear what judge sanders then one of the most experienced trial judges in the circuit thinks about bringing cameras into the trial court room? >> i think we will see it in our lifetime and we could deal with that. trial judges need to be given tools to handle the situation because the news
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media say they just report what is happening but do not affect behavior but if you believe that turn on the television any saturday afternoon when the camera goes in to the football game normal individuals act like they are from mars. [laughter] also the o.j. case which was the aberration there are good examples also william kennedy smith trial was accused of date rape and acquitted publicly televised if it had not been televised i think the public would have thought of a rich wealthy family beat the system but they could see the weakness of the case and had more confidence in the verdict for our do think they need to be given discretion and consent of the parties, the judge has the kill switch to instill a stop the action at any time for any reason which is controversial but i think it will work and we can make it
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work. >> what kind of safeguards would you impose to protect witnesses come measures or whatever else needs to be done to manage cameras and the court room? >> i know there are varying proposals and i am not an absolutist come of florida as far as i am aware is the only state that allows photographing of jurors during trials. that seems unnecessary. i think that is useful area to establish a flat rule i am in favor of flat rules rather than giving judges or parties veto power over the decision to televise. that is not how we operate in this country. we have rules that apply to
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everybody and i think we should not have a system where the parties can veto. i also think the public scrutiny issue is very important it was a very controversial decision in the '70s or '80s when both houses of congress decided to televise their proceedings. people said it would change and perhaps it did. but imagine today if the house of representatives or the senate said we will not televise our proceedings in a more. there would be a rebellion because the public expects that it is a part of the government that it is available to them for better or worse. once we establish a regime
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where the expectations and is trials are public, and get to that point* come out of a commercial opinion, but i think management wants to cover triose much more than appellate arguments i think there is limited arguments for a limited audience for coverage of the appellate arguments on a regular basis. but once we establish a rule where something is available to the public, the public quite appropriately gets very irritated read that is taken away from them. that is true for congress and corp.'s once we get to a more regular and widespread
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access. >> you may gen the cameras complicate the dynamics. in the trial courts in particular. use the cameras as the problem? >> yes. it has spent a long time since i have been a trial judge but i was up five years. in the context of a jury trial it can pose a lot of problems. not just of the jurors can be seen but what happens in the very frequent instance the jury needs to be excused for arguments to those be broadcast? what about motions for the mistrial when the jury is not sequestered? is that broadcast and the jury allowed to go home? there is a lot of complications with the instantaneous problems that occur in the dynamics of a trial and trial judges need
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corrective action and it seems to me opposes strong problems that are not present in the appellate context for pro i deferred to judge sanders and because his experience is current but i do have agreed to reservations that i do not have for the appellate court. >> mr. jarrett you have some experience and and this kind of thing and what safeguards should be imposed if you televise something? >> when they began by talking about concerns i have substantial concerns in the context of a criminal trials. concerns about the truth finding function and concerns about security. they are different and related by have concerns about the effect of cameras
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and the court room could have on of the performance behavior of trial lawyers or the performance of witnesses who are not happy particularly in a criminal case where they testify about behavior were they are ashamed of and concerns about security and the testimony of undercover police officers and the world those with strong feelings and access to guns come i worry about having the judges be publicly known that and the faces are very visible. >> i take those issues seriously but there is another side which relates to public knowledge and
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intelligence. and 1993 there was a bombing of the world trade center which had a much smaller loss of life but it was a very serious event in new york and led to the rest of the blinded shake and there were seven major criminal prosecutions that came out that in the southern district of new york those weren't not televised and not widely followed their wrists of newspaper stories baja. many of my journalistic colleagues who have studied al qaeda and this subject of terrorism generally have said those trial transcripts word the enormous treasure trove of information about
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al qaeda and what later became 9/11. if that information had been more widely available and more a part of the public conversation perhaps the country would have taken that issue more seriously and the subsequent years leading up to 9/11. yes there are security concerns about court personnel but i also think public education can be a security benefit as well as the rest. >> we all talk about the unusual case. it is not a surprise we start off talking about o.j. simpson nor any of the of their average and case is but the understanding of our justice system that plays
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out to the average an ordinary the garden friday motor talk about federal courts rear already screening out huge portion of the garden variety but may have to think of the context to increase the public understanding of the courts of the judicial system by having carries then the court room for the garden variety case is. i don't know if it is like c-span's it is continuous running loop of good differ anchor room per day over a situation where management or talent selected which cases would be viewed during particular hours of television and that is important because a lot of what people learn is wrong
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end of the decisions someone makes of what will appear on television and what it is featured and what is sexy or important seems it is the enormous amount of power and battlefield hugely comfortable to be honest, leaving that power with the management that seeks retains and feel less comfortable about a situation where management lowered tv station can selectively peace sift through what they think the audience will see as it is market driven access. are we talking access where they can read is running and we could include the safeguards are talking about the selective feature piece which has the possibility of
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decreasing public intelligence? >> when ninth circuit has added seven new to channel where you can watch arguments that the court holds and in my view, i faint the audio is just as good as have vane video but the ninth circuit data is record and don't sell to them in any way just put it out there to access. >> i respect where you are coming from but i flat out disagree there could be in a mechanism other than the private sector to decide which cases are televised and which don't.
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one sad development of the last 10 years since court tv which was a television station and built entirely around trials through financial corporate mergers became part of time warner and court tv has been folded there is no such channel anymore. there is something called in session which is part of headline news and one of the problems that came up with cameras and the court room is the public interest and a regular diet of triose it is small and it has not yet to
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maintain long-term success per individual trials catch interest. casey anthony and o.j. simpson and frankly i don't see any alternative to the market making these decisions. for all that we've belabor the simpson case, even if that case had an important to benefits and it is the public recognition and embrace of dna evidence as the important tool of law-enforcement cojones to convict the guilty and free the innocent. i think the fact we have jurors who know about dna evidence and in some respects, expected is a positive thing for a system.
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i think it should be interested in the fourth circuit would get the same interest as casey anthony but i live in the real world and don't see an alternative to let the market decide what is broadcast and what is not. >> are like to say the public interest of trials is small but that is true also race, a child murder, sex, objection is very big. that is why we know about casey anthony trial and the question is wateree trying to accomplish? to have the accords and cameras to satisfy entertainment purposes or trying to provide something educational that increase is the citic knowledge of
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members of the public and starting with the purpose it will actually get you to the right place to think about how you build it if we are concerned about transparency is somebody in the panel has already mentioned a variety of things that need to happen before we get to the point* of putting cameras and a court room which i have no problem for appellate arguments. we have to be really careful about whether or not the cameras in the court room discussion is really about transparency and educating the public or something else that has to do with the market to provide the audience for what happens. >> one other thing is i think we should not ignore the demise of traditional newspaper and of the reporter. when i was a judge there's a reporter that cover the court system. he is long gone and before long


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