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