Created for FRONTLINE by Rosie Heffernan

This FRONTLINE film can be taped and used as a classroom resource for up to one year after broadcast. Teacher Center materials featured on the FRONTLINE Web site can be photocopied for educational purposes. All other rights reserved.

JUSTICE FOR SALE examines an aspect of the judicial branch that is seldom discussed in the classroom: the election of judges. Can judges interpret the law fairly and without bias if they must depend on special interests to be reelected to the bench? The program suggests that the influence of money on judicial elections might be more threatening to our democracy than races for legislative or executive office. The program, focusing on decisions made by popularly elected judges in three states, leaves the viewer questioning whether justice was served or compromised.

JUSTICE FOR SALE is an excellent addition to any Government or Law curriculum which examines the many facets of the Judicial branch. The public perception of judicial campaign financing is examined through two lenses: the first reflecting the influence of campaign spending and the second reflecting the impact of special interests on judicial decisions. In addition to incorporating constitutional principles such as popular sovereignty and separation of powers, the program presents both the powers and the responsibilities of those elected officials who interpret the law and create judicial precedents. This FRONTLINE report reevaluates the independence of a statewide system of judges who must depend on special interests to fund winning campaigns.

The following FRONTLINE educational primer is presented as a guide to creating classroom discussion and activities which will enable students to understand both the process and the potential of judicial elections. Activity I: Campaigning in the Media will empower students with a deeper understanding of the implications of fundraising in judicial campaigns. Activity II: Selecting Judges helps students to weigh the pros and cons of the different methods of selecting judges used throughout the country.

The background information, discussion questions, and classroom activities contained in this guide will provide the teacher with the tools necessary to elevate the students' level of learning from data that is passively received to knowledge that is actively understood. Teachers and students can also access FRONTLINE's companion JUSTICE FOR SALE Web site for extended information about judicial elections around the country. Follow the appropriate links throughout this guide for in-depth related background information, extended interviews, readings, and more.

The U.S. Supreme Court is the only court created by the U.S. Constitution. In Article III of the Constitution, Congress is granted the power to establish inferior courts, which it did for the first time in the Judiciary Act of 1789. All federal judges are appointed by the President of the U.S. and approved by the Senate. The creation of an independent federal judiciary cemented the role of the courts in the system of checks and balances.

Through the principle of federalism, found in Article I and Amendment 10 of the Constitution, states were given the power of creating their own court systems. Although the original thirteen colonies maintained the federal practice of appointing judges, many state constitutions were amended to "democratize" the judiciary with popular elections during the Jacksonian period (1830s and 1840s). The early 1900s introduced into several state judicial systems the method of merit selection. Currently, thirty-nine states still elect judges at some level.

Visit the Companion Web site for additional historical background.

General Information

• Thirty-nine states elect judges at some level. (a map of the country showing which states elect, appoint, or merit select judges.)
• Generally, voters are the least informed about candidates in judicial elections, necessitating the use of the media for name recognition.
• Local TV ads can range from $3,000 - $7,000 for a 30 second commercial and $6,000 - $14,000 for a sixty second commercial.
• Local newspaper ads can range from $ 5,000 - $8,000 per half page, $ 10,000 - $16,000 per full page.
• There are no limits on judicial campaign contributions in most states.
• Major contributors include a spectrum of interests: from insurance companies, managed care organizations, and the tobacco industry, to individuals, trial lawyers, and labor unions.
• Trial judges can impact the outcome of a verdict through their influence in:
• selecting a jury.
• deciding on a change of venue.
• admitting evidence.
• admitting expert witnesses.
• ruling on motions raised by attorneys.
• advising jurors on the law.

• Appellate judges can impact the outcome of the appeal because:
• there are no juries.
• a panel of judges decide whether to uphold or overturn the decision of the trial court after reviewing applicable law.
• Supreme Court Judges can impact the outcome of the appeal because:
• a panel of judges decide whether to uphold or overturn the decision of the appellate court after reviewing applicable law.
• Current options for campaign financing include:
• candidates using their own resources to fund their campaigns.
• public funding by states or counties.
• campaign contributions from the private sector.
• Alternatives to judicial elections by the general public are:

1. Appointment
2. Merit Selection
3. Merit Retention
4. Combination of a & b,
5. Combination of b & popular election

According to Texans for Public Justice, recent campaigns of seven sitting State Supreme Court Justices raised nearly $9.2 million in contributions of $100 or more. Of this $9.2 million, forty percent ($3,690,363) was given by contributors who are closely linked to parties on the court docket for the period January 1, 1994 to October 30, 1997.

**Reflects contributors on the court docket from January 1, 1994 to October 30, 1997.

Courtesy of Texans for Public Justice

Separation of Powers:
Constitutional authority is shared by three separate branches of government - the Legislative makes the law, the Executive enforces the law, and the Judicial interprets the law.

Democracy
A system of government in which political control is exercised by all the people, either directly or through their representatives.

Interest Groups:
An organization of people sharing a common interest or goal that seeks to influence the formation of public policy.

PACs (Political Action Committee):
A committee set up by and representing a corporation, labor union, or special-interest group that raises and spends campaign contributions on behalf of one or more candidates.

Grass Roots Campaign
Literally means of or from the "common people." Groups mount their campaigns by letter, telephone, e-mail or word of mouth.

Trial Court:
The court which first hears a case in which the facts are established after testimony by witnesses and the parties. A trial court usually includes a jury and judge as well as direct and cross examination of witnesses.

Appellate Court:
A panel of judges which review the decision of the trial court based solely on its transcripts, legal arguments, legal briefs and applicable law. A party may appeal a decision of the trial court on the basis that a law or Constitutional right or principle was violated as a result of the lower court’s decision. There are no witnesses or jury present.

Merit Selection:
A candidate is appointed by the governor after being screened and recommended by a judiciary nominating committee. This procedure has been implemented to take politics out of the process. (additional information about merit selection.)

Merit Retention:

After completing a term of office, a judge is evaluated for retention by the voters. To remain on the bench a judge must receive at least a 50% approval vote. According to the American Bar Association’s 1998 Task Force, judges campaigning for retention election can be subject to the same high costs of most elective campaigns.

The students will:

• understand that the systems of separation of powers and checks and balances allocate different powers and responsibilities to the three branches of government.
• recognize both the importance and the expense of media exposure in winning elections.
• realize the financial power of interest groups in promoting a (judicial) candidate.
• learn and evaluate the various methods of obtaining a judicial seat.
• analyze their personal expectations of our judicial system.

A. DISCUSSION QUESTIONS:

Before viewing JUSTICE FOR SALE:

• How does the Judicial Branch differ from the Executive or Legislative Branches?
• How do they check each other's power?
• How does the role of judge differ from that of a legislator or the President?
• What is the conflict between popular sovereignty and the protection of individual rights in a democracy?
• What are the pros and cons of electing officials in all three branches of government?

Begin viewing JUSTICE FOR SALE. Stop the videotape after Bill Moyers' (in courtroom) comments on the judicial branch.

B. SETTING UP CLASS ACTIVITY:

• Divide the class into four equal groups
• Assign each group as campaign managers for one of the following judges:

• Candidate’s platform.
• Strategies for raising money, including specific pleas to special interests.
• The type of media they will use to advertise the candidate:
• Television (students need to know the local rates).
• Newspapers (students need to know the local rates).
• Sample Ads
• An expense report showing both campaign contributions and expenses
• Tally of votes:

1. Add 5,000 votes for every 30 seconds of TV purchased for their candidate.
2. Add 8,000 votes for every full page newspaper advertisement purchased for their candidate.

The teacher will allocate contributions to each candidate based upon the strength of the campaign appeals and the interests of the following organizations.

Health Insurance Association of Anystate (HIAA)
This group is a coalition of the health insurance providers in the state. It has $300,000 set aside for campaign contributions.

Anystate branch of Nuclear Power & Energy (NPE)
This organization consists of all industries which provide and or utilize nuclear power. It have set aside $400,000 for campaign contributions

The Anystate Association of Trial Attorneys(AATA)
This association is comprised of individual lawyers who represent clients in court. It collectively has $500,000 for campaign contributions.

Anystate Rifle Association(ARA)
This organization consists of people who want few restrictions on the buying and selling of weapons. It has set aside $ 350,000 for contributions.

• Was our exercise an example of a democratic election?
• Based on our discussion of the role of judges and the courts, do you think that campaigning, seeking contributions, and advertising in the media is the best method of insuring an unbiased and independent judiciary? Why/why not?

  (recent studies and survey on public confidence in the courts.)

Students will view the remainder of the video, JUSTICE FOR SALE.

A. DISCUSSION

1. Has the video changed your opinion about judicial elections? Why/why not?
2. How could we make judicial campaigning less controversial?
1. limiting contributions? (be sure to discuss pros/cons)
2. placing limits on candidate’s expenditures? (pros/cons)
3. Introduce other methods used throughout the country for the selection of judges
1. Appointment
2. Merit Selection
3. Merit Retention
4. Combination of a & b,
5. Combination of b & popular election

1. Divide class into four groups
1. Merit Selection and Appointment by authority
2. Merit Selection and popular election
3. Appointment
4. Election
2. Each group must prepare to defend their type of judicial selection as a panel before the class. They must be prepared to answer questions posed by the other members of the class. Each presentation (opening statement and questions) is not to exceed 15 minutes.
3. Class will discuss and vote on the method of selecting judges that they would like to see implemented in their state.