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Ethics in America II

Choosing Justice: Elections and Judicial Independence

John Fairfield, a former prosecutor and respected state trial judge, is thinking of pursuing a life-long dream: a seat on the state Supreme Court. In Fairfield's state, Centralia, all the judges are chosen in nonpartisan elections, with no limits on what can be spent — or said — in the process of campaigning. Fairfield wonders what will be required of him — especially regarding fundraising and political advertising in what will be a fiercely contested statewide campaign — and what the implications might be for the ethical integrity of the judiciary.

John Fairfield, a former prosecutor and respected state trial judge, is thinking of pursuing a lifelong dream: a seat on the state supreme court. In Fairfield’s state, Centralia, all the judges are chosen in nonpartisan elections, with no limits on what can be spent-or said-in the process of campaigning. Fairfield wonders what will be required of him in what will be a fiercely contested statewide campaign. To start, he will have to raise funds—and many potential contributors are groups and businesses that are likely to appear before his court. Should this trouble Fairfield?

Once Fairfield announces his candidacy, a group called Centralians for an Informed Public sends him a survey asking him to spell out his judicial philosophy, and his opinion on certain controversial decisions such as Roe v. Wade. Should he answer the survey? One way or another, should he let the public know where he stands on issues they care about?

Fairfield’s team will be running commercials, a requirement for a successful campaign. Should Fairfield’s commercials attack his chief opponent, Judge Smith?

Two weeks before the election, Judge Fairfield is now in the lead; however, he has finished working on a trial court decision that, while legally straightforward, would be politically unpopular. Could he ethically hold the decision until after the election?

Ultimately, Fairfield is elected; but at the end of his term, he chooses not to run again. Instead, he campaigns for changes in the way Centralia selects its judges. What changes, if any, should be made?

Fairfield thought his time as a judge was over, but at the end of his term he receives a telephone call from the attorney general of the United States. The president nominates Fairfield for a United States Court of Appeals. The Constitution establishes that federal judges will be nominated by the president, confirmed by the Senate, and serve for life. Why did the founders reject elections for federal judges?

As we conclude, Fairfield is a U.S. Court of Appeals judge. His three-judge panel has just issued a very controversial decision overturning the conviction of an accused terrorist, and some people are attacking the judges as “traitors” who should be impeached or otherwise punished for their actions. How should Americans respond when judges are attacked in this way?

Credits

EXECUTIVE PRODUCER
Richard Kilberg

PRODUCER
Dominique Lasseur

WRITER
Joan Greco

SENIOR EDITORIAL DIRECTOR
Ruth Friendly

EXECUTIVE DIRECTOR
Barbara Margolis

BROADCAST PRODUCER/DIRECTOR
Mark Ganguzza

EDITOR
Rob Forlenza

ASSOCIATE PRODUCERS
Joey David
Jason Steneck

PRODUCTION COORDINATOR
Ann Yoo

SCENIC DESIGN
H. Peet Foster

LIGHTING DESIGN
Dan McKenrick

SENIOR AUDIO ENGINEER
Bob Aldridge

ETHICS CONTENT ADVISOR
Lisa H. Newton, Ph.D.

AUDIENCE COORDINATOR
Rachel Ward

SPECIAL THANKS
Richard Briffault
William Dressel
Tom Fitton
Deborah Goldberg
Ronald Hedges
Sherrilyn Ifill
Evan Janush
Douglas T. Kendall
Eve Markewich
Aaron Schechter
Ernest Torres
Rena Uviller

Meet the Participants

Arthur Miller (Moderator)
D’Army Bailey
Elizabeth Blakemore
James Bopp Jr.
Bert Brandenburg
Barney Frank
Stephen Gillers
Kamala D. Harris
W. Mark Lanier
Andrew P. Napolitano
Sandra Day O’Connor
Theodore B. Olson
Thomas R. Phillips
Antonin Scalia

Moderator

Arthur Miller Arthur Miller
Professor of Law
Harvard Law School 
Arthur Miller is the Bruce Bromley Professor of Law at Harvard Law School. He is nationally known for his expertise on the right of privacy. Professor Miller has been a moderator on many Fred Friendly Seminars series, including the recent programs “Our Genes/Our Choices: Who Gets to Know?”; “Disconnected: Politics, the Press and the Public”; “Epidemic!”; “Before I Die: Medical Care and Personal Choices.” Previous series include Liberty and Limits: Privacy and Security on the Eve of the MillenniumThe Constitution: That Delicate BalanceEthics in AmericaIn the Face of Terrorism; and That Delicate Balance II: Our Bill of Rights.

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Panelists

D'Army Bailey D’Army Bailey
Judge
Tennessee Circuit Court
Memphis, Tennessee 
Judge D’Army Bailey is an activist, politician, attorney, writer, columnist, public servant, and a circuit-court judge in Tennessee. Judge Bailey was born in 1941 and raised in Memphis, Tennessee. He received his B.A. from Clark University in Worcester, Massachusetts, and his LL.B. from Yale Law School in 1967. Bailey returned to his hometown of Memphis and practiced law from 1974 to 1990. In 1990 he was elected circuit-court judge in Tennessee’s 30th Judicial District. Judge Bailey has lectured at law schools, including Loyola in California, Washington and Lee, Washington University in St. Louis, and Notre Dame. He has published legal articles in scholarly journals at the law schools of the University of Toledo, Washington and Lee, Howard, and Harvard. Bailey currently serves on the executive committee of the Tennessee Judicial Conference.

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Elizabeth Blakemore Elizabeth Blakemore
Principal
Blakemore & Associates 
Elizabeth Blakemore is a principal of Blakemore & Associates, a political and fundraising consulting firm based in Houston, Texas. Over the past twenty years, Elizabeth Blakemore has earned a reputation as the top fundraiser in Texas’s top market, Houston, and one of the most sought-after Republican fundraisers statewide because she repeatedly ensures her clients have the resources they need to succeed. Today, she leverages her broad range of political experience to deliver unmatched results for leading candidates at every level, as well as some of the largest and most respected political-action committees, think tanks, and foundations across Texas. Ms. Blakemore also assists numerous state district court judges, justices on the 1st and 14th court of appeals, and Texas Supreme Court Justices Dale Wainwright and Don Willett.

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James Bopp Jr. James Bopp Jr.
General Counsel
James Madison Center for Free Speech
Attorney
Bopp, Coleson & Bostrom
James Bopp is an attorney with the law firm of Bopp, Coleson & Bostrom in Terre Haute, Indiana. He is engaged in the practice of law with emphasis on not-for-profit corporate and tax law, on campaign finance and election law, and on U.S. Supreme Court practice. He is also general counsel for the James Madison Center for Free Speech. Mr. Bopp received his B.A. from Indiana University and his J.D. from the University of Florida College of Law.

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Bert Brandenburg Bert Brandenburg
Executive Director
Justice at Stake Campaign 
Bert Brandenburg is the executive director of Justice at Stake. Brandenburg was the Justice Department’s director of public affairs and chief spokesperson under Attorney General Janet Reno. Brandenburg serves on the National Ad Hoc Advisory Committee on Judicial Campaign Conduct and the Coalition Alliance of the American Bar Association’s Coalition for Justice. He holds a J.D. and B.A. from the University of Virginia.

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Barney Frank Barney Frank
U.S. Congressman (D-MA)
Barney Frank is a member of the United States House of Representatives. He is a Democrat and has represented the 4th District of Massachusetts since 1981. Frank is the most prominent openly gay politician in the United States. He received his B.A. from Harvard College, graduating in 1962. He taught undergraduates at Harvard while studying for a Ph.D., but left in 1968, before completing that degree, to become the chief assistant to Mayor Kevin White of Boston, a position he held for three years. In 1972, Frank was elected to the Massachusetts legislature, where he served for eight years. During that time, he entered Harvard Law School and graduated in 1977. In 1979 he became a member of the Massachusetts Bar, before being elected to Congress in 1980. He has published numerous articles on politics and public affairs, including Speaking Frankly in 1992.

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Stephen Gillers Stephen Gillers
Professor of Law
New York University 
Stephen Gillers has been a professor of law at the New York University School of Law since 1978 and vice dean from 1999 to 2004. He does most of his research and writing on the regulation of the legal profession. His courses include Regulation of Lawyers, Evidence, and Law and Literature. Professor Gillers is the author of Regulation of Lawyers: Problems of Law and Ethics, a widely used law-school casebook first published in 1985 and now in its seventh edition. He is currently chair of the ABA’s Joint Committee on Lawyer Regulation.

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Kamala D. Harris Kamala D. Harris
San Francisco District Attorney
In December 2003, Kamala D. Harris was elected as the first woman district attorney in San Francisco’s history and is the only African American district attorney in California. DA Harris has developed a “smart-on-crime” approach—prosecuting violent crime with resolve while remaining committed to rehabilitation and placing a priority on preserving civil liberties. Harris graduated from Howard University and UC Hastings College of the Law before starting a successful career as prosecutor in Alameda County and San Francisco and then as managing attorney of the Career Criminal Unit in the San Francisco DA’s office.

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W. Mark Lanier W. Mark Lanier
Lead Litigation Counsel
Lanier Law Firm 
W. Mark Lanier is the founder of the Lanier Law Firm, where he serves as the firm’s lead litigation counsel. He was chief counsel in the nation’s first Vioxx trial. Before the August 2005 Vioxx verdict, Lanier was already recognized as one of the top trial lawyers in the United States. Recently, he was named by the American Lawyermagazine as one of the top 45 attorneys in the nation under the age of 45. Mr. Lanier is certified as a personal-injury trial specialist by the Texas Board of Legal Specialization. He is licensed to practice in all Texas state and federal courts, as well as the U.S. Supreme Court. Mr. Lanier is also licensed to practice law in New York state. The Lanier Law Firm has offices in Houston, Longview, and New York and represents clients from all over the world in courtrooms across the United States.

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Andrew P. Napolitano Andrew P. Napolitano
Senior Judicial Analyst
Fox News
Former Superior Court Judge
State of New Jersey
Former New Jersey state judge Andrew P. Napolitano joined Fox News Channel in January 1998 and currently serves as senior judicial analyst. Judge Napolitano appears daily on The Big Story, cohosts Fox & Friends once a week, is a regular on The O’Reilly Factor, and cohosts daily the nationally syndicated radio show Brian and the Judge. Judge Napolitano is the youngest life-tenured superior court judge in the history of the state of New Jersey. While on the bench from 1987 to 1995, Judge Napolitano tried over 150 jury trials and sat in all parts of the superior court—criminal, civil, equity, and family. He has been published in many national publications, and his last book, The Constitution in Exile, is a New York Times best seller.

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Sandra Day O'Connor Sandra Day O’Connor
Associate Justice
U.S. Supreme Court, ret.
Sandra Day O’Connor is a former American judge and politician who served as the first female associate justice of the Supreme Court of the United States, from 1981 to 2006. Due to her case-by-case approach to jurisprudence and her relatively moderate political views, she was the crucial swing vote of the Court for many of her final years on the bench. She was nominated to the Court by President Ronald Reagan and served for over 24 years. Prior to joining the Supreme Court, she was a politician and jurist in Arizona.

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Theodore B. Olson Theodore B. Olson
Attorney
Gibson, Dunn & Crutchery
Washington, D.C.
Former Solicitor General
Theodore Olson is the former solicitor general and now an attorney in private practice in Washington, D.C., at the firm Gibson, Dunn & Crutcher. He has been with the firm since 1965 except for two forays into government, serving as President Bush’s solicitor general from 2001 to 2004 and as assistant attorney general for the Office of Legal Counsel for three years during President Ronald Reagan’s first term. He argued Bush’s case before the Supreme Court that decided the outcome of the disputed 2000 presidential election.

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Thomas R. Phillips Thomas R. Phillips
Former Chief Justice
Supreme Court of Texas 
Thomas R. Phillips, former chief justice of the Supreme Court of Texas, is now an attorney in private practice in Austin at the firm of Baker Botts. He was the youngest chief justice in Texas history when appointed in 1988, and he was elected and reelected four times in contested, partisan elections. He served as president of the Conference of Chief Justices in from 1997 to 1998. In 2005, he received the Harry Carrico Award from the National Center for State Courts for his longstanding efforts to bring a nonpartisan, merit-based judicial selection system to Texas.

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Antonin Scalia Antonin Scalia
Associate Justice
U.S. Supreme Court 
Antonin Scalia is an associate justice on the United States Supreme Court. After attending Georgetown University, where he completed his undergraduate studies and received an A.B. in history, he went on to Harvard Law School and served as editor of the Harvard Law Review. In 1971, after ten years in private practice, he entered public service, working as the general counsel for the Office of Telecommunications Policy under President Richard Nixon. He was then appointed the assistant attorney general for the Office of Legal Counsel in the Ford Administration. Justice Scalia then returned to academia, taking up residence first at the University of Chicago, then as visiting professor of law at Georgetown University Law Center and at Stanford University. In 1982, President Ronald Reagan appointed him to be a judge on the United States Court of Appeals for the District of Columbia Circuit. Four years later, President Reagan nominated him as an associate justice of the Supreme Court of the United States.

View Program and Text Highlights

The video highlight shows our panelists in action. The Discussion Guide frames their debates in contemporary terms, while the Ethics Reader grounds the discussion in the philosophy of the past.

How much information should a judicial candidate disclose? 

John Fairfield, a former prosecutor and respected state trial judge, is thinking of pursuing a lifelong dream: a seat on the state supreme court. In Fairfield’s state, Centralia, all the judges are chosen in nonpartisan elections, with no limits on what can be spent—or said—in the process of campaigning. Once Fairfield announces his candidacy, a group called Centralians for an Informed Public sends him a survey asking him to spell out his judicial philosophy and his opinion on certain controversial decisions such as Roe v. Wade. Should he answer the survey? One way or another, should he let the public know where he stands on issues voters care about?

Read Text Highlights

Framing This Discussion (from the Discussion Guide)

The scenario raises questions about the judicial imperative to keep judges independent and the selection process free from cronyism. Democratic elections of any kind are open contests of interests, with the interest groups proudly and openly standing behind (and contributing to the election funds of) the candidate whom they think will look after their interests. But judges are not supposed to promote the interests of the groups that elected them. They are supposed to apply the law without fear or favor, and that means in total disregard of who contributed to the campaign. Justice is supposed to be blind.

For a deeper examination of the analysis abridged here, see the Discussion Guide.

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Philosophical Grounding of This Discussion (from the Ethics Reader)

It is unlikely that Aristotle would support judicial elections. The following excerpt from his Nichomachean Ethics points out that people must be ruled by laws that are immune from fluctuating political, personal, and popular opinions:

[J]ustice exists only between men whose mutual relations are governed by law; and law exists for men between whom there is injustice; for legal justice is the discrimination of the just and the unjust.

And between men between whom there is injustice there is also unjust action (though there is not injustice between all between whom there is unjust action), and this is assigning too much to oneself of things good in themselves and too little of things evil in themselves. This is why we do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant. The magistrate on the other hand is the guardian of justice, and, if of justice, then of equality also. And since he is assumed to have no more than his share, if he is just (for he does not assign to himself more of what is good in itself, unless such a share is proportional to his merits—so that it is for others that he labours, and it is for this reason that men, as we stated previously, say that justice is ‘another’s good’), therefore a reward must be given him, and this is honour and privilege; but those for whom such things are not enough become tyrants.

To read selections from philosophical texts relevant to this program, see Ethics Reader.

Read Related Articles

Lay Off Our Judiciary
Theodore B. Olson

Why is it so important to maintain the independence of the judiciary? Why does it deserve respect from citizens and lawmakers alike? And why should the Senate put political considerations aside when confirming federal judges?

 

“If Elected, I Promise []”- What Should Judicial Candidates Be Allowed to Say?
Stephen Gillers

What are the legal and practical issues surrounding judicial campaign speech? What rules might judicial candidates use to guide their statements during elections?

 

No Way to Choose
Thomas J. Moyer and Bert Brandenburg

How are judicial elections affected by escalating campaign spending and increased attention from special-interest groups? Why is it important to fight these trends, and how can that be done?

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