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[QUOTE]Originally posted by David Sands: [QB] Tim: that doesn't address someone I said after that post. While I disagree with where the line is droawn on what should be the public's right to access a justice's private conduct, Justice Scalia has still made speeches like that available. He just doesn't allow them to be [i]video[/i]taped. The public was not denied anything from that high school speech as far as I know. I disagree with all of you that a person is unable to separate himself and his thoughts from the context of his role as a government actor. While I would not argue with the legal realists that at some point absolute separation is impossible, there are adequate examples of decent jurists on the left and on the right who have such virtue. They have been able to hold personal opinions that later bore on cases they heard and still managed to follow the law despite desires to steer the result another way. However, I doubt anyone here is going to agree with me. But back to his prohibition on [i]video[/i]taping. Let me try to tease out what I think might an undercurrent to this conversation. If the real objection is not disclosure of his speech versus no disclosure, is the real issue that Justice Scalia is improperly limiting [i]which media[/i] can come? (Note: by media here, I do not mean a broader definition like TV vs. print journalism. I mean a narrower meaning akin to videotape vs. audiotape.) Is the objection founded on a sense of entitlement for more complete exposure to judges? If that is the case, I think perhaps what might be one reason Scalia does not want videotape is that he understands the kind of emotion that television inspires. As an appellate judge, he is trying to maintain the same detachment as he has when he is sitting on the bench. Allow me to give an extended quote from Judge Richard A. Posner in [i]Frontiers of Legal Theory[/i], pp. 228-29: [QUOTE][E]motion focuses attention, crystallizes evaluation, and prompts action in circumstances in which reflection would be interminable, unfocused, and indecisive. But in situation in which making an intelligent decision requires careful, sequential analysis or reflection, emotion may, by supplanting that process, generate an inferior decision. � We expect appellate judges to be less emotional [than] trial judges because [we want them] remote from the emotionally most salient features of the case. � The design of the appellate process can thus be seen as a response to the danger of emotionalism viewed as the placing of too much weight on a salient feature of a complex situation.[/QUOTE]Since he understands the roles of an appellate judge and appellate court are to prevent too much emotionalism attaching to subject matters of litigation, he is attempting to short circuit potentially inflammatory interpretations of his performance in front of a video camera, both on and off bench. The majority of the Supreme Court agrees with him on the negative consequences of videotaping on the ability of the court and its personnel to perform their duty with the candor and collegiality that television destroys. A rather colorful example was Justice David Souter�s congressional testimony where he said, �I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body.� However, in the interest of the public�s desire to know his thoughts on matters of potential litigation, he has still released his actual words and let them stand on their own. Therefore, nothing substantive has been hidden from the people. [/QB][/QUOTE]
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