Whatever Liu’s jurisprudential philosophy, three things virtually guaranteed controversy over his nomination:  (1) Liu is President Obama’s first nomination to the court; (2) the Ninth Circuit is a lightning rod for criticism from the right side of the political spectrum (more so, I think, than the Fourth Circuit is for the left side of the political spectrum), and (3) did I mention Liu’s a professor at Cal Berkeley?

H/T: How Appealing.

We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on oth- ers, and must follow those requirements themselves.

Further, since it stays the district court’s January 7 order, it appears at first glance that there will not even be live streaming allowed within the same courthouse. From my quick skim (and I do mean quick), it looks like the opinion even precludes taping of the proceedings, since that was likewise allowed for in the January 7 order.

UPDATE: (1/11/10): The Supreme Court’s order is now up at its website.

When the Ninth Circuit announced last month that it was launching an experimental program that would allow video cameras in district court courtrooms, the first question on everybody’s mind seemed to be: “Will the Prop 8 trial be televised?”

Now, the question is, “Will you settle for delayed broadcast on YouTube?”

Though the case seems a rather  obvious first choice for the program in light of its high profile, the decision is not without controversy:

Chief U.S. District Judge Vaughn Walker in San Francisco ordered the video coverage, the first for a federal trial in California, over the objections of Proposition 8’s sponsors. Their lawyer argued that allowing the proceedings to be viewed outside the courthouse would violate their right to a fair trial by intimidating their witnesses.

“The knowledge that you’re testifying to untold thousands or millions … can cause some witnesses to become more timid” and induce others to be overly dramatic, attorney Michael Kirk told Walker.

Prop. 8’s campaign committee, Protect Marriage, has maintained that some of its supporters have been harassed, and that witnesses whose testimony was widely seen would face further danger.

Walker will have the power to order that individual witnesses’ faces be concealed or their voices muted on the YouTube uploads.

***

Lawyers for the couples supported video coverage. “What happens in the courtroom is public property,” attorney Theodore Boutrous told Walker.

A few people may be able to view a live feed — presuming camera coverage goes forward at all. Keep in mind that the press release announcing the program said “[c]ases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge.” And the San Francisco Chronicle article notes:

Walker’s order, subject to final approval by the appeals court’s chief judge, allows live video feeds to public areas of federal appeals courthouses in San Francisco, Pasadena, Seattle and Portland, Ore., and to a federal court in Chicago that has requested it.

University of Utah law professor Paul Cassell writes at The Volokh Conspiracy that “it does appear that public comment process has been completely short-circuited,” citing this post at Bench Memos claiming “procedural shenanigans” by the district judge to get around the public comment period for changes in the local rules.

The YouTube link is here.

The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski:

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said.

I’ve heard heavy criticism of the use of cameras in court. Many criticized the gavel-to-gavel coverage on the O.J. Simpson case because they believed it caused the attorneys (and even the judge) to grandstand, and some felt that it contributed to Judge Ito “losing control” of his courtroom. Assuming the validity of those criticisms, I don’t think one need worry that those problems will be replicated in the federal district courts. Federal judges are hardly known for allowing attorneys to get away with misconduct.

And the question everyone is asking in the wake of this announcement: will the Proposition 8 trial be televised? Here’s the only clue given by the press release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.

I wonder what “consultation” means in this instance. At one extreme the chief circuit judge would have veto power. At the other, the chief circuit judge would merely advise and leave the final decision to the chief district judge. If I can find more detail about this, I’ll post it.

UPDATE (12/30/09): According to this article in the San Francisco Chronicle, the judge presiding over the Prop 8 trial first suggested television coverage to the attorneys even before the Ninth Circuit policy was finalized. Prop 8 backers claim that cameras cannot be allowed until a court rule amendment is proposed and time allowed for comment.

UPDATE (1/7/10): Well, the Prop 8 trial won’t be televised live, but you’ll be able to see it . . . maybe.