Colorado federal District Court Judge Wiley Daniel was asked this afternoon by Seattle federal District Court Judge Robert Lasnik why people around the country shouldn't be able to watch Daniel in action on TV. Responded Daniel:

"They can see me. They just need to show up in person. ... It's an open trial. They can show up and watch me in action."

That was the kickoff to a panel on cameras in the courtroom at the Ninth Circuit Media Conference in Pasadena. Lasnik, an advocate for allowing TV cameras in the courtroom, moderated the discussion that brought some frank talk from judges clearly split on the question.

Lasnik told Daniel that having people show up in person might have been fine when "when we had a tiny little country and trials where everyone knew each other." But today, he suggested, couldn't people around the country learn a lot by watching an important or interesting trial? Daniel said broadcasters would "probably only show a snippet on the evening news" that wouldn't necessarily represent what he was doing. In fact, he said:

"It may distort what I'm actually doing in court."

Joining Daniel in his opposition to cameras was Ninth Circuit Judge Carlos Bea. He said the question has to be how cameras in the courtroom will help the cause of justice. He had an answer:

"I don't see anyway that that a camera is going to help us run our courtroom or make our decisions."

The only exception he could think of is if there was an irascible judge up for election who might be more restrained under the watchful eye of a camera. He wondered what the civic value would be of broadcasting federal court proceedings.

"I don't doubt there is some entertainment value. It's wonderful for television. You have unpaid actors. You don't have to write a script. There are no production costs."

After many Americans watched a televised court proceeding involving Anna Nicole Smith, he wondered, "What does anyone remember about Texas probate law as a result?"

Arguing for cameras, was Ninth Circuit Judge Sidney Thomas. He said that many people "assume that trials are being conducted in the Judge Judy fashion."

"I think we have a good story to tell."

In Thomas' home state of Montana, state courts allow cameras by rule and it's a violation of the code of judicial conduct to exclude them without a good reason. And he said there have been no problems. He said broadcasting court proceedings is particularly important with criminal cases.

"We are seriously eroding the notion of a public criminal trial in the United States and I hate to see it happen."

Thomas did concede that cameras can affect a judge's behavior. One of his colleagues, who he did not name, won't ask any questions if the hearing is being televised, he said.

The split about cameras in the courtroom highlights a more serious disagreement among Ninth Circuit judges. Tonight, Chief Judge Mary Schroeder talked about the court's decision to broadcast its hearing on California's gubernatorial recall case. She said it was one of the best things the court had done to further understanding of the judiciary. She said it is essential that the "public understand the critical role played by the courts."

Said Daniel:

"I don't believe that one of the fundamental purposes of a trial, either civil or criminal, is to educate the public."

And Bea:

"Our job is not to educate. Our job is to try the cases fairly and justly, period."

Thomas:

"I think we do underestimate the public and the audience when we say they won't understand. I think most people, they are not going to get all the nuances, they may come to the wrong conclusion about the central issue, but they'll get to the guts of what is important."

Court TV anchor Fred Graham, who has covered courts for the New York Times and CBS, said that the U.S. Supreme Court sets the worst example by banning cameras in its courtroom.

"I think it's selfish. I think the justices don't want to be recognized in public. They don't want to have more security than they have. I don't know what got into Justice Souter. He was up before the Senate Judiciary Committee, he made some noises that were favorable to cameras in the courts and as soon as he got confirmed, it was going to happen over his dead body. Other than that selfish reason that you can hypothesize about, none of the reasons that have been given really wash and I think it is not to the credit of the Supreme court that it takes this position."

Graham said Court TV has aired 900 trials and no one has shown that "anyone's rights were violated by the presence of these cameras." He also pooh-poohed worries that TV would go just for the soundbite.

"Believe me we did soundbites at the New York Times. And some of them were lurid, if we were lucky."

Lasnik said he thinks some judges don't want cameras in their courtroom because they want to preserve some of the "mystique" about the federal judiciary.

"I worry about that factor, too. We are different. It's OK for us to be different and maybe one of the reasons we are different is people don't see us day in and day out."

Lasnik poked at The Seattle Times during the panel. He talked about the paper's private arbitration with the P-I over the joint operating agreement. He said the Times "didn't like the glare" that would have come from an open court proceeding.

He said federal trial judges worry that airing court hearings could lead to more parties taking their cases to private arbitration.

"We don't want to end up with a situation where we have rich people's justice and everybody else's justice."

In the past week, two women died who were among the most influential players in their respective political parties. I cannot imagine there were many places in the country in the 1980s or early 1990s, or even more recently, where the state Democratic and Republican parties were headed by two women. Today came news of the death of former Republican Chairman Jennifer Dunn. Former Democratic Party Chairwoman Karen Marchioro died last week from breast cancer.

If you read The Seattle Times you know that court cases are routinely sealed with little or no compelling reason. The Times series "Your Courts, Their Secrets" came up several times in the opening panel of the Ninth District Media Conference in Pasadena. But the same thing is happening all around the country. Cases disappear from dockets with no notice. In one current case, even the media's brief arguing against keeping a case secret has been ruled secret itself.

"Something is wrong with this picture," said panelist Kelli Sager, an attorney in the L.A. office of Davis Wright Tremaine. (The firm's Seattle office represents The Seattle Times.) She's filed an amicus brief in a San Diego case where all mention of a sealed case and arguments about it have been kept confidential.

She referred to the case as "the case we are not allowed to talk about." The case involves a guilty plea of a co-conspirator in the Duke Cunningham bribery scandal. The San Diego Union-Tribune wrote last month that, "Government lawyers have blanketed the proceedings in a thick shroud of secrecy ..." The issue is before the Ninth Circuit. While Sager didn't address judges about that case, she did make a plea for them to be more skeptical of the government's national security claims. She said judges should "simply not take at face value that, 'This is national security.' The government always argues, 'Just trust us. We say it's national security. Just trust us.' ... We're being told as advocates for the press and the public we should simply accept what the government says and if they say 'national security' we all should just go away and you should not do that as judges."

Ninth Circuit Judge Kim Wardlaw, the moderator, opened the panel by talking of the "long tradition of open judicial proceedings. We've always enjoyed a presumption that the First Amendment protects the public's right to the courts, subject to a few and narrowly construed exemptions."

In criminal cases, there is a First Amendment protection that keeps cases open — for the benefit of the defendant as well as for the public. But that doesn't exist for civil cases. Sager said the Supreme Court has "hinted at" a similar constitutional protection for civil cases, but has yet to rule definitively.

Wardlaw said that in preparing for today's panel she learned, "to my surprise, we do have much secrecy in our courts."

"The presumption of openness seems to be eroding."

Former U.S. Attorney Debra Wong Yang conceded that there may have been a time post 9-11 when prosecutors may have been too willing to accept the government's arguments about secrecy.

"Nobody wanted to be the person who said, 'That's not a terrorism case' and then have it turn into something else.'"

There was an interesting exchange about electronic records. San Jose Mercury reporter Howard Mintz said that advances in technology have made it much easier to get online access to a wide array of court records. But, he said, he still comes across records that court personnel say are available only at the courthouse, not online.

"I find that argument kind of ludicrous," he said. "If it's a public document it ought to be available." And available online. "What we see is the presumption of openness isn't really there."

Sager said she knows that not all judges agree. She said that in discussions about access to court records, one judge said, "You shouldn't be able to sit at home in your pajamas and read my divorce records." In a suit in the courthouse would be fine. But not from the comfort of PJs and a living room couch.
The problem with the PJ rule — despite the obvious lack of a compelling reason for making some documents public but less public than others — is that it makes records public only for a price. Big law firms and corporations will always be able to afford to send someone to a courthouse to look through records. Attorneys working as sole practitioners, or I'd say a small newspaper or lone blogger, may not be able to afford that kind of research.

Here is the Times series on court secrecy. The Reporters Committee for Freedom of the Press summarizes other cases here.

Former House Speaker Newt Gingrich said in an e-mailed comment that Jennifer Dunn played a major role in his House leadership and on the Ways and Means Committee when the GOP ruled Washington:

She had an instinct for bringing people together and in a number of cases where we might have broken down and failed to pass legislation she convinced people to listen to each other and find a compromise that worked. She was relentless in seeking out women to run across the country and then in mentoring them once they got to Congress. She represented a sound common sense approach to serving her constituents, which made it almost impossible to not listen to her."

Earlier Gingrich had released a statement calling Dunn "a remarkable friend and a real leader." He pointed out that Dunn had been working on the State Department Transformational Advisory Group and "her advice and counsel will make an important contribution in developing a better State Department for America's future."

Gingirch reportedly helped put Dunn on the Ways and Means Committee and she remained a trusted ally. Her connections to GOP House leadership, and her willingness to challenge some of the old guard, is well detailed in this 1998 Washington Post story.

State Sen. Rodney Tom announced this morning he's giving up his run in the Democratic primary for the 8th Congressional District. The fast start of Darcy Burner in her second run, and her continued success in fundraising, pushed Tom out of the race just months after he questioned whether she had what it takes to win the district.

His press release says he will refund all contributions made to his campaign. He will pay for all campaign costs out of his own pocket. He said:

"Our fundraising was going great, but Darcy Burner's campaign has been phenomenal."

Burner apparently had to show again what she showed in the run up to the 2006 campaign -- she knows how to campaign and how to raise money.

I won't be doing much on this given that I am out of town. But check tomorrow at Real Clear Politics where Reid Wilson promises an indepth look at the 8th.

Jennifer Dunn's legacy is the lasting power of the state Republican Party. Yes, the party is at a low point in terms of the numbers of seats held in the Legislature and the GOP looks out of favor. But it strikes me that the presence of Rob McKenna in the attorney general's office, Luke Esser as state chair, Dino Rossi waiting in the wings to run for governor and her own son, Reagan, at the King County Council, shows that Dunn's form of Republicanism is alive today. Dave Reichert's hold on Dunn's old congressional seat shows the same.

Dunn believed in a pragmatic GOP. She was a moderate. And though some of those I mentioned above are not, they emulate her style and her approach to campaigning. Dunn held the 8th Congressional District from its inception until she decided to move on. I believe she could have been a congresswoman for as long as she wanted. McKenna called her today an important mentor. Political consultant Bret Bader is quoted in The Times story saying:

"It's like a whole generation of Republicans have lost their mom. She was that giant of a figure."

I think he's exactly right. At one time many thought, and she hoped, that she would be the face and voice of a different sort of Republican Party, one who believed in George Bush's compassionate conservatism. She was acting that way before Bush was talking that way. Her party featured her at times, but after the Republican landslide of 1994 she was out of style. She fought for a top leadership post but had to settle for less.

Dunn was a rare politician in a couple of ways that come to mind. First off, she liked raising money and she said so. She was good at it, as party chairwoman, as a member of congress and as a top fundraiser for Bush. I'm not sure I've ever heard an elected official say they liked that part of the job as much as Dunn did. It was a large part of her success. From her time as party chairwoman she built a network of contacts around the country. I remember walking across the floor of the 1996 GOP convention in San Diego with her. In that world she was a star.

And I spent time with her again in 2000 when there were rampant rumors that she was likely to get an important post in the White House if Bush was successful that fall. She connected me with Karl Rove for a story I did on Dunn's role. But she never made that step up to the White House with Bush.

I exchanged e-mails with Dunn last month, as we did on occasion. She was named to the board that was to protect the editorial independence of the Wall Street Journal under new owner Rupert Murdoch. I was surprised to see her name there among well-known journalist types.

Dunn was on vacation in Scotland on fishing and sightseeing in what she said was perfect weather and beautiful scenery. How did she get on that panel? Dunn told me:

Apparently negotiators were looking for someone who was an independent person, not a journalist but who had common sense and the ability to evaluate the independence of the publications. My name came up, was submitted to all the parties to the agreement, and was agreed to.

Dunn has also been busy as a board member of the Commission on Presidential Debates. She won't get to see if she has been successful in bringing a debate to Washington state next year. If it happens, it'll be another important legacy of her leadership for the state.

My condolences to her friends and family.