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FRONTLINE

1806

"Justice for Sale"

Air date: November 23, 1999

 

Justice for Sale

Produced by Stephen Talbot, Sheila Kaplan

Written by Stephen Talbot & Sheila Kaplan and Bill Moyers

Bill Moyers, Correspondent

ANNOUNCER: In 39 states, many judges are elected, not appointed. And like all candidates, they need money to win.

BOB GAMMAGE, Former Justice, Texas Supreme Court: People don't go pour money into campaigns because they want fair and impartial treatment. They pump money into campaigns because they want things to go their way.

HELEN LAVELL, Media Consultant: We're in a system where elections can be bought.

ANNOUNCER: Correspondent Bill Moyers investigates who's contributing and what they get in return. In a rare public interview, two U.S. Supreme Court Justices speak out.

Justice ANTHONY KENNEDY, U.S. Supreme Court: Money in elections presents us with a tremendous challenge, a tremendous problem, and we are remiss if we don't at once address it and correct it.

ANNOUNCER: Tonight on FRONTLINE, Justice for Sale. Is campaign cash corrupting our courts?

 

 

BILL MOYERS, Correspondent: [voice-over] In Wilkes-Barre, Pennsylvania, one of the rituals of democracy is the election of county judges. Once upon a time, campaigning for judge was a low-key, even courtly affair. Not anymore.

District Attorney Peter Paul Olszewski knows that if he wants to become a judge, these days he has to campaign like a politician- on television.

ASSISTANT DIRECTOR: Action.

ED MITCHELL, Media Consultant: [reading ad copy] As District Attorney, Peter Paul Olszewski considers it his duty to fight crime. Okay. You've got to look a little more animated, Peter, okay?

ASSISTANT DIRECTOR: And action.

ED MITCHELL, Media Consultant: Television is very important in any kind of election. You're just not a real candidate if you're not on television. In my experience in the judge races I've handled is that T.V. has been the vehicle for getting these men elected.

ANNOUNCER: [Olszewski television commercial] As district attorney, Peter Paul Olszewski considered it his duty to fight crime-

BILL MOYERS: To pay for his expensive T.V. ads, Olszewski has to raise lots of money. And where does the money chase take him? To the very lawyers who may one day appear before him in court.

LAWYER: [at fund-raiser] And I look forward to that first time that I'm standing before you, and I have to say, "Your Honor." I really am! That's going to be the greatest thrill!

FUNDRAISER HOST: We're really looking forward to having you on the bench. We know you're a very able and experienced attorney. And I think it's going to be very exciting over the next 10 years after you're elected, hopefully, right here in the primary, to have you working with us, to try to, shall we say, do justice here in northeastern Pennsylvania. Thank you for coming here tonight.

BILL MOYERS: Judge Tom Burke is already on the court. To hold off a strong challenger, he reckons he'll need to raise $250,000. That means a lot of time at country-club fundraisers.

Judge TOM BURKE: You choose to enter a campaign, and one of the first things that you realize is this is all about selling yourself over the next 6 to 12 months.

HELEN LAVELL, Media Consultant: [strategy session] It's almost like an impulsive buy at a supermarket, you know? That's how people vote, based on emotion. We have spent an inordinate amount of time-

BILL MOYERS: A quarter of a million dollars enables Judge Burke to afford a high-priced media consultant and commercials that are ready for primetime.

HELEN LAVELL: Am I concerned with having the most cinematic music that I can possibly have behind the radio spot? Am I concerned about what the light looks like when our candidate walks into a courtroom? Am I concerned about how he looks, that we present him the way he should be seen by the voters, as a dignified, wonderful, humble, hardworking, incredible, deserving-of-your-vote kind of guy? Yes, I do. They are emotional ways, emotional angles that I go in. And yes, people do vote based on that.

ANNOUNCER: [Burke television commercial] Every day, Judge Tom Burke brings a lifetime of experience to his Luzerne County courtroom. As a father of five, he's concerned for the future of our children. As your judge, Tom Burke is committed to seeing that those in his courtroom are held accountable for their actions. Vote for Judge Tom Burke.

Judge FRED PIERANTONI: [at fundraiser] Hey, thanks for coming out, Mr. Capp. I appreciate that.

SUPPORTER: I hope you make it.

BILL MOYERS: Meanwhile, back in the pack, the challengers must hunt for voters the old-fashioned way, handshake by handshake. Municipal Judge Fred Pierantoni, a descendant of coal miners, does his fundraising with frankfurters.

Judge FRED PIERANTONI: After this election, I won't touch a hot dog for at least six months.

BILL MOYERS: The proceeds from his fundraisers are modest, and he can afford only the most basic - and most noisy - campaign commercial.

ANNOUNCER: [Pierantoni television commercial] Over 25,000 cases in 7 years. Assistant district attorney 5 years. District justice 7 years. Judge Pierantoni. The experience you want. Pierantoni, the people's judge.

VIRGINIA MURTHA COWLEY: Going on the bus? My name is Virginia Murtha Cowley. I'm running for judge.

BILL MOYERS: Virginia Cowley is also short of funds. Her hopes depend on kinfolk and the public's sweet tooth.

VIRGINIA MURTHA COWLEY: My name is Virginia Murtha Cowley. I'm running for judge. Here's a lucky cookie to remember me by.

BILL MOYERS: Her low-budget commercials are as down-home as her recipes.

COWLEY'S MEDIA CONSULTANT: There are really just a couple of points that I'd like to hit in the commercial that need to come out of your mouth. One of them is,"Virginia is one tough cookie."

ANNOUNCER: [Cowley television commercial] People are talking about Virginia Murtha Cowley for judge.

MAN: Virginia is one tough cookie.

VIRGINIA MURTHA COWLEY: Protecting our children, our senior citizens, keeping our neighborhoods safe. That's what this job is all about.

ANNOUNCER: Vote Virginia Murtha Cowley judge.

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: Even though there is no hint of scandal in this election, sure enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It's a system that disturbs even the winning media consultant.

HELEN LAVELL, Media Consultant: Other people who are in my profession will be ready to kill me. I don't care. I don't. I think that the amount of money flowing around out there to get people judicial seats is obscene. It's unfair, and people are ending up with a chance to be on a bench who have no business being there. I really believe that we are in a system where elections can be bought. It's sad.

BILL MOYERS: We've come a long way from the Founding Fathers, who thought judges should be appointed on merit, not elected. They wanted the judiciary - the third branch of government - to be a check on the other two, to be neutral, independent, and fair, beholden to no one. That's why in most of the original 13 states, judges are still appointed.

But as the country grew, populist passions prevailed. The Jacksonian Democrats, in particular, wanted to elect judges. So today we have 39 states where voters do just that. But like campaigns for governors and legislators, those campaigns for judges require money, lots of money.

That's what concerned the Pennsylvania supreme court, so they appointed a commission chaired by Philadelphia attorney Jim Mundy to investigate the election process.

JIM MUNDY, Pennsylvania Supreme Court Commission: When we made the quantum leap to media campaigns in judicial elections, we lost perspective. And now you see contributions of a $1,000, $2,000, $5,000, $10,000, $15,000, $25,000. I think that changes the whole ballgame now.

BILL MOYERS: It takes over a million dollars these days to get elected to Pennsylvania's supreme court, and there are no limits on how much an individual can give. This group, a business lobby, is raising money to bankroll candidates for the court.

BILL COOK, Pres., Pennsylvanians for Effective Government: We actually got involved in judge campaigns back in 1989. And we realized from our old Civics 101 that there are three stools of government. One is the executive, obviously, the legislature, both of which we play very well in. And in Pennsylvania, the odd-numbered years are the judicial elections. In '93, '95 and '97 we got involved in supreme court campaigns.

BILL MOYERS: Having fared well with the state legislature, Bill Cook's outfit is now determined to elect a state supreme court which would be sympathetic to business interests.

BILL COOK: Generally, the idea is it's a whole lot easier to elect people who think like you than it is to educate them once they've been elected. And there are issues that we want the legislature to pass, that we want the governor to sign into law. And we would certainly like to have justices find those issues constitutional when they come before them.

BILL MOYERS: The perception that special interests are buying favor with judges prompted the Pennsylvania supreme court to conduct a public opinion poll.

JIM MUNDY, Pennsylvania Supreme Court Commission: What we found is that people believe that money buys judicial favor. Eighty-nine percent believe that most of the time, some of the time, or all of the time judicial decisions are affected by monetary contributions. If we had no other data than that, we would know we had a problem.

BILL MOYERS: The fear that campaign contributions are undermining judicial integrity has prompted two members of the U.S. Supreme Court to speak out in a rare public interview.

[on camera] The concern that each of you express was in particular about campaign contributions to judicial races. Why do you see that as a threat to independence and neutrality?

Justice ANTHONY KENNEDY, U.S. Supreme Court: In part, it's because the campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough-and-tumble. This is a difficult world for a jurist, a scholarly, detached neutral person to operate within.

Now, when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we're concerned that there will be either the perception or the reality that judicial independence is undermined.

Justice STEPHEN BREYER, U.S. Supreme Court: And independence doesn't mean you decide the way you want. Independence means you decide according to the law and the facts. Law and the facts do not include deciding according to campaign contributions. And if that's what people think, that threatens the institution of the judiciary. To threaten the institution is to threaten fair administration of justice and protection of liberty.

BILL MOYERS: [voice-over] New Orleans, Louisiana. In the city they call "The Big Easy," money has been known to buy elections. And that's exactly what's got a lot of people worried that justice, too, might be up for sale.

ANNOUNCER: [Calogero television commercial] For 25 years, Chief Justice Pascal Calogero has set the standard for what a judge should be-

BILL MOYERS: Up for reelection last year, the chief justice of the Louisiana supreme court was targeted by a business group, the Louisiana Association of Business and Industry, known as LABI. They considered his voting record on the court anti-business.

GINGER SAWYER, Political Director, LABI: We don't pick our opponents lightly when we make selections of people to target for replacing on the bench. The primary way to make the selection was tracking all the decisions the supreme court has made over the last 25 years. So we drew from the 25-year history 50 cases and determined how each one of the judges had voted on the merits of those cases.

Chief Justice Pascal Calogero had a 3 percent voting record. Now, that's totally unacceptable, to the business community's way of thinking.

BILL MOYERS: Justice Calogero dismissed the charge that he had voted in favor of business only 3 percent of the time. He said LABI was using a highly selective and distorted measure to rate him.

Chief Justice PASCAL CALOGERO: I've cast 50,000 votes in 25 years on this court. If you want to go back and look at and pick and choose the cases in which you think that a given vote was wrong or indicated a leaning of some sort, it's very easy.

GINGER SAWYER: He complained that she had hand-picked the issues. Well, certainly I hand-picked the issues. Was I going to let him pick the issues?

BILL MOYERS: LABI had the money. Now all they needed was someone to spend it on.

GINGER SAWYER: The first thing is to find a good candidate. And we really worked for a long time to find Chuck Cusimano. He had been in the legislature. He was a sitting judge in Jefferson Parish. He was an aggressive, vibrant candidate. In fact, a lot of judges are too judgely to run. They like to hold court in a corner of a cocktail party or a fundraiser. But Chuck, I guess, because he had been in the legislature, he had a lot more- he had good campaigning skills.

WENDELL GAUTHIER, Trial Attorney: LABI had previously elected two supreme court justices, had poured a lot of money into their campaigns, and now had determined to get rid of this chief justice who had been fair to both sides all of his life. But the business community now does not care about the credentials or the qualifications of the candidate. They care about one thing: How will you vote? Will you vote with us? And so they chose to go out and get a candidate that would be completely aligned with them.

CHARLES CUSIMANO: I understand business. I understand people. I understand victims of crime because I've sat in the courtroom-

BILL MOYERS: With money from LABI and other business groups, Cusimano went on the attack.

ANNOUNCER: [Cusimano television commercial] A victim of sexual abuse diagnosed with gonorrhea, painfully describing what he had repeatedly done to her, she identified her molester. The trial court convicted. The appeals court and supreme court upheld the conviction. Pascal Calogero disagreed, saying looking at molesters' medical records was an invasion of privacy and stated "My considered view now is that the conviction should be reversed."

Calogero says he deserves reelection. What do you think he deserves?

WENDELL GAUTHIER: It used to be that you didn't attack the other candidates. That was especially true in judicial races. Nowadays, it's attack, attack, attack. And that lays at the feet of the business community. They started the attacks, and they just- I mean, they lay it on against the chief justice.

A guy that has given his life to public service in Louisiana, been involved in no scandals and no corruption, and then to have the business community, because of greedy, motivated, selfish interests go after him- it was appalling.

BILL MOYERS: To understand what happened in this campaign to Justice Calogero, there's a story you need to know, a story about a small town called Convent along the Mississippi River in St. James Parish.

RICHARD BURTON: When I was raised in this area, everything was beautiful. We had nice, beautiful green grass, all beautiful trees. It was almost like a paradise.

PAT MELANCON, Community Activist: It's a unique area, actually, around the world. The soil is so fertile, and the landscape is so green. You could grow anything here, any fruit, vegetable, seed-bearing plants, fruit-bearing tree, catch any kind of fish or shellfish.

ROSEANN ROUSSEL: We had crawfish ponds. And Daddy used to have shrimp boxes in the river, and we were able to eat the shrimp, the river shrimp in the river, and the fish. But we're not able to eat it now because it's all polluted.

BILL MOYERS: This stretch of the Mississippi River between Baton Rouge and New Orleans is known as the "Chemical Corridor." Seven major oil refineries and hundreds of chemical and other industrial sites make this one of the most polluted places in the nation. Locals call it "Cancer Alley."

Governor Mike Foster, a wealthy businessman with a Cajun accent and a "good ol' boy" style, was elected in 1995 on a platform of attracting more industry to Louisiana. In this ad in The Wall Street Journal, the governor proclaimed that Louisiana is "bending over backwards" to attract new companies with promises of tax breaks and legal protection from lawsuits.

PAT MELANCON: We've got just about every kind of chemical plant that you can imagine here. Most of these chemicals are either known cancer-causing chemicals or they're suspected to cause cancer in humans.

Right now, I have a father-in-law that's dying of pancreatic cancer. I lost my mother at 57 from cancer. My neighbor died of cancer. The next-door neighbor to us, my aunt behind us, all died of cancer. And they know that these chemicals cause these illnesses, and yet they continue to pile that on top of us.

BILL MOYERS: Encouraged by Governor Foster, Shintech, a subsidiary of a Japanese company, announced plans to construct a huge $700 million polyvinyl chloride plant near Convent. The governor was delighted, and his Department of Environmental Quality quickly approved the Shintech plant. Then something unexpected happened. Residents of Convent banded together to try to stop it.

GLORIA BRAXTON: People in Convent, we got sick and tired of being sick and tired. Now, that's bottom line. Enough is enough!

BRENDA HUGUET: We have a Department of Environmental Quality, but where's the quality? I mean, they have to start looking at the quality, the quality of life. And there's ways to do it. If they'd only enforce the laws that's on the books now, we wouldn't have all the problems we have today. But what they're doing is overlooking the problems. Or when they do the inspections, it's covered up.

Prof. OLIVER HOUCK, Tulane Law School: Let me tell you first where you are. You're in Louisiana, which is just different. We have a different attitude towards the environment down here, and it's all bad.

We have plants in Louisiana that discharge into the Mississippi River, single plants that discharge more than all of industry discharges in the state of New Jersey. We have three or four plants that outdo Ohio. I mean, we have world-class pollution here. The contamination levels that go into the Mississippi River are phenomenal. And unlike other states, we drink this river.

BILL MOYERS: Oliver Houck founded the Environmental Law Clinic at Tulane University in New Orleans, where he teaches law. Students at the clinic often provide legal services to people who couldn't otherwise afford it. The state supreme court has allowed this student lawyer assistance for almost 30 years under a regulation called Rule 20.

The low-income residents of Convent could not afford to hire lawyers to fight Shintech. Instead, they turned to students at the law clinic.

Prof. OLIVER HOUCK: When Shintech came in, we raised the issue head-on. Is this environmentally just? This is a heavy-polluting plant. It's right in the middle of a community that has already got six other plants overloading it with these same chemicals.

If you look at the levels of contaminants these people are breathing, they're like 100 times what people breathe in the United States. They're more than 20 times what people breathe even in the chemical corridor of Louisiana. I mean, this is just astronomically unfair.

BILL MOYERS: At first, Tulane was apprehensive about challenging a powerful corporation and a popular governor. But the Convent group persisted, and the law clinic finally decided to take on the case.

LISA JORDAN, Acting Director, Tulane Environmental Law Clinic: In the beginning, of course, I had thought that, well, the chances- just objectively, the chances of winning this case - as winning to them meant that the plant wouldn't come at all - were slim, considering everything that was against us in terms of the administration. And as I started going to the meetings, just the level of conviction that they had started actually convincing me, you know, we may- we may actually have a chance here.

PAT MELANCON: [at rally] We have come together here in the face of a terrible evil, the pollution, contamination, and destruction of the only environment we have.

LISA JORDAN: Pat is extremely smart, extremely savvy. She thinks like a lawyer.

PAT MELANCON: We filed an environmental justice petition. We have also filed a Title 6 administrative complaint, which is a civil rights complaint. And there are perhaps more actions that are going to be filed.

BILL MOYERS: While the students were teaching their clients about the law, the Convent folks were giving the students a lesson in the real world of Louisiana politics.

LISA JORDAN: You always hear that a committed group of individuals can accomplish anything. And I'd always heard it but, you know, if you don't have the personal experience, you think "Right." And they did. I mean this group accomplished something that no one would ever have given them any chance of accomplishing when this first started, including myself.

PAT MELANCON: [local news broadcast] Shintech will not locate in St. James Parish!

BILL MOYERS: In 1997, the Environmental Protection Agency ruled in favor of the Convent residents, saying the proposed Shintech factory failed to meet air pollution standards.

Prof. OLIVER HOUCK: Shintech is a great victory, a huge victory. I mean it's a big win. But the governor's is not about winning like that. The governor's about making sure that the clinic doesn't get in the way of anything he proposes again. It's revenge time.

Gov. MIKE FOSTER: [courtesy Louisiana Public Broadcasting] There's nobody likes this but the Tulane Law Clinic. They're a law unto themselves. They have decided that they will decide who comes to Louisiana and decide under what under what rules. I mean, it's almost like they're the vigilantes out there doing this on their own, and I don't think it's right.

And I'm going to tell you, I'm going to encourage anybody from Tulane to do what they can to put a stop to it. And I can tell you this. I'm going to look differently at Tulane from a perspective of being- of having major tax breaks. If what they're going to do is support a bunch of vigilantes out there, they can make their own law.

Prof. OLIVER HOUCK: So he came down here to New Orleans, and he told, among other things, the Chamber of Commerce and our alumni not to contribute money to Tulane. He went to the state legislature and threatened to introduce legislation to eliminate Tulane's tax exemptions.

Gov. MIKE FOSTER: Tell them to spend their own money to do it, quit spending Tulane's. How's that? Who's the bully? The big fat professors on the big salaries trying to run people out of the state to Texas, or me who is saying "Please come to use Louisiana. Give us some jobs. Jump through the hoops, and do it right"?

LISA JORDAN: It's sad to think that some of that rhetoric would be believed because there are so many out there who have real problems and who have real health problems associated with pollution and who do want to do something about it and who don't make enough money to be represented by lawyers. And we provide a service which I think we should be commended for, and instead, you know, we've just been attacked, basically because we've been effective, as far as I can see it.

Prof. OLIVER HOUCK: If we don't do it, it doesn't get done. They knew that. If they can get us out of the game, it doesn't matter if there's environmental law. It'll just never be applied to them. So this is sweet. They don't have to go to Congress and repeal any law. All they have to do is repeal us.

BILL MOYERS: The governor and his allies did not want the Tulane Law Clinic to stop another Shintech. To restrain the students, they had to convince the state supreme court to change Rule 20. Which brings us back to Chief Justice Calogero. The Louisiana Association of Business and Industry sent a letter to the chief justice asking him to revise Rule 20 to restrict the Tulane students. The environmental clinic, they said, is "bad for business."

SAM LeBLANC, New Orleans Chamber of Commerce: As a matter of fact, a whole group of business organizations besides LABI. The New Orleans Regional Chamber did. The Business Council of Orleans did, and some other organizations, I believe, did ask that the rule be changed.

BILL MOYERS: This put Chief Justice Calogero in an awkward position. He had long supported Rule 20. Back in 1993, when a state agency asked him to change the rule, he refused. But now Calogero was running for reelection under pressure from a well-financed challenger. The chief justice desperately needed to prove that he, too, was good for business.

Prof. OLIVER HOUCK: So Calogero was facing his political future. And he can't sit on it anymore. He's got to rule.

BILL MOYERS: And rule he did, this time in favor of changing Rule 20. The court required that a group must prove that 75 percent of its members are indigent and provide evidence that they are living below the poverty line. The effect was to sharply restrict the ability of the Tulane Law Clinic to help citizens take on environmental cases like Shintech. The governor praised Calogero's supreme court for changing Rule 20.

LISA JORDAN: Obviously, it was a big blow. And it did make the Shintech victory appear to be a very Pyrrhic one. I mean, we won that battle, but in the larger sense, we lost- it appeared as though that we had lost the war.

PAT MELANCON: We don't have our access to courts because Rule 20 has made sure the modifications that made sure we can't have access. And so the working poor in this community and in this state do not have equal access to the law and the protections of the law.

GLORIA BRAXTON: We don't have no money to pay no lawyers. These people did a tremendous job for us, and I love them. I love them.

MARY GREEN: Our governor, he's a coward. And he's afraid of those student lawyers because they were some good lawyers, very good lawyers. They knew what they were doing. And that's why he fixed it so they can't work for us. But he's not only the bad one. The ones that's backing him up's not worth a dime, either.

HAROLD GREEN, Southern Christian Leadership Conference: Within two weeks after Justice Calogero was one of the chief architects of the amendments to Rule 20- within two weeks, the business interests in the state came out and endorsed Justice Calogero.

Prof. OLIVER HOUCK: The week he cuts the deal - he's a Democrat - 29, I believe, members of the New Orleans business community, leading Republicans, endorse the Democrat. Could be a coincidence.

BILL MOYERS: The same week Justice Calogero changed Rule 20, he received this letter of endorsement signed by Chamber of Commerce chairman Sam LeBlanc and other prominent business leaders.

SAM LeBLANC: It was a letter to say these individuals who have signed this letter support Justice Calogero. Anyone who runs against him should know that these individuals are going to be in support of him.

BILL MOYERS: Now the money started flowing from business leaders and corporate defense lawyers, including the attorneys who represented Shintech. In the end, Calogero raised over a million dollars and beat Cusimano by a comfortable margin. When FRONTLINE asked him to talk about all this, the chief justice declined, saying Rule 20 is still the subject of possible litigation.

Prof. BILL QUIGLEY, Loyola School of Law, New Orleans: I know that raising money is extremely distasteful to judges. I had a judge tell me, "Look, you know, we do everything that we can to make sure the money doesn't influence it. But you know when the day comes and you have two people stand in front of you in court, and one of those people gave you $5,000 and the other one didn't give you anything, or worse, gave some money to the person who ran against you, you know, that affects you. It really does."

BILL MOYERS: Only Justice Calogero knows if business pressure and campaign contributions influenced his decision on Rule 20. But the reputation of his court has been tarnished by the public perception of a quid pro quo.

Prof. BILL QUIGLEY: The Louisiana supreme court commissioned a poll about confidence in the judiciary, and they asked people, "Did politics play a role in the judiciary in Louisiana?" And the response was not "Yes" or "No." The first response was laughter because everybody knows that in Louisiana, certainly politics plays a role.

But from the point of view of the people who had lawyers last year and can't get lawyers next year, this is not about electoral politics. This is about justice. This is about somebody slamming the courthouse door shut, locking it and nailing it shut and excluding a large group of people from ever getting to court.

PAT MELANCON: We know that our legislature and our governor- we're convinced that these people are bought and paid for by the corporations that buy their campaigns and pay for their campaigns. But what we hoped was that at least we could get a fair hearing in the courts, that at least the judicial branch of government would be open to us, and we'd have equal access to the laws and the protections in the law. But instead of that happening, they're giving all the protections to multi-national corporations, and the citizens are being shut out.

LISA JORDAN, Acting Director, Tulane Environmental Law Clinic: In fact, they have new plants coming to their area, which they want to oppose, which they have asked us to represent them on and which we have had to tell them no because they haven't been able to present the proof that they meet the rule. And again, I say they haven't been able to present the proof. Not that they don't intrinsically meet the rule, but they can't get over those hurdles.

So that's, in fact, happened, that we have had to turn that group down. And that's hard, especially when you know that they have nowhere else to go.

BILL MOYERS: The law makes a promise: Equal justice for all. If that promise is broken, if judges appear biased in favor of their campaign contributors, faith in the fundamental fairness of our courts is undermined.

[on camera] Let me just give you some statistics from a poll conducted by the Texas state supreme court and the Texas bar association, which found that 83 percent of the public think judges are already unduly influenced by campaign contributions; 79 percent of the lawyers who appear before the judges think campaign contributions significantly influence courtroom decisions, and almost half of the justices on the court think the same thing.

I mean, isn't the verdict in from the people that they cannot trust the judicial system there anymore?

Justice ANTHONY KENNEDY, U.S. Supreme Court: This is serious because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral. And when you have figures like that, the judicial system is in real trouble.

BILL MOYERS: [voice-over] When it comes to the most partisan, expensive, knock-down, drag-out brawls for control of a state supreme court, Texas is the heavyweight champion. Twenty years ago it was widely known that Democrats and personal injury lawyers owned the courts here, making Texas the lawsuit capital of the world.

JOHN HILL, Former Chief Justice, Texas Supreme Court: I'll tell you, there were a lot of people that if they woke up and were told that they'd been sued in a Texas court for damages, that would race their heartbeat up a little bit.

BILL MOYERS: In those days, there were no limits on Texas campaign contributions, and trial lawyers made enormous donations to justices on the bench, who often ruled in their favor.

TOM PHILLIPS, Chief Justice, Texas Supreme Court: A sitting judge, he had taken contributions from a single individual as high as $120,000 and had several contributions in the $50,000-plus range from people that did a lot of business with the Texas supreme court.

Prof. ANTHONY CHAMPAGNE, University of Texas: From about 1980 to 1988, it was very much of a Democratic court, and it was very much of a pro-plaintiff court. And it was really the involvement of the medical community and the business community in 1988, where they began to pour money into judicial races of those candidates who were sympathetic to their point of view, that began to change things.

BILL MOYERS: The Texas Medical Association spearheaded a campaign by business to take back the courts. Videos like this were widely distributed to doctors to rally the troops.

ANNOUNCER: [Texas Medical Association video] In the early 1980s, a handful of the richest, most powerful personal injury lawyers in Texas devised a scheme to seize control of the Texas supreme court-

KIM ROSS, Lobbyist, Texas Medical Assoc.: We aggressively organized physicians across the state to challenge the members of the court, and that was a very aggressive grass-roots campaign called Clean Slate '88. Obviously, politics in Texas is a full-contact, no-pad sport to begin with, and judicial politics at that time even more so. And so we didn't want them to be shy, and we didn't want to be shy in how we conveyed it. So it was- it was anything but a soft sell.

BILL MOYERS: One video highlighted the case of a Dr. Benjamin Bradley, who had been hit with a $20 million malpractice judgment.

Dr. BENJAMIN BRADLEY: [Texas Medical Association video] I can think of nothing more like a hostage situation.

KIM ROSS: It can happen at any time, in any place. Thankfully, Dr. Bradley has a supreme court he can appeal to if we prevail in November. Without that, he would have no chance, and his career would be ruined as a practicing physician.

Prof. ANTHONY CHAMPAGNE: Those tapes frightened doctors and made them want to get involved in judicial races, made them want to contribute money. The main thing, of course, was that the TMA raised money, gave money to judicial candidates, and a lot of it. And of course, they were able to create a kind of grass-roots campaign, as well.

KIM ROSS: We held what were briefings with the physicians around the state - more like rallies - and where we presented them with a package. Basically, it included a letter that you could write to your colleagues, to your employees, an ad you can drop up in the local newspaper that you would sign that would talk about the importance of this, a letter you can write your patients, which many did. And here are cards you can simply leave in your office.

And we went to physicians' spouses. We have a very well-organized physician spouse organization called the Alliance. In fact, many of these spouses - mostly female, but not entirely - we would send to campaign schools and teach them grass-roots techniques and phone banking. We used them pretty much as the grass-roots arm to make sure those cards are distributed. They would go to clinics and say, "Here's your slate cards."

TOM PHILLIPS, Chief Justice, Texas Supreme Court: Doctors are one of the few groups that do see voters face to face when they're in a position of authority. The doctors for a number of years have put out slate cards, with candidates for court races and other offices they cared about, and they've handed them to their patients. In fact, one of our judges who was not supported by the doctors got such a card urging him to vote for his opponent when he took his daughter in for a medical emergency.

BILL MOYERS: TEXPAC hit the supreme court like a Texas twister. In one year alone, 1988, five of the nine justices were swept from office, replaced by TEXPAC-supported judges.

1st JUSTICE: [TEXPAC video] I wouldn't be on the Texas supreme court if it wasn't for the help that the medical community gave me.

2nd JUSTICE: I would like to thank all of the participants of the Clean Slate Coalition.

KIM ROSS: The initial sweep surprised us and was exhilarating, of course. And then to have pulled it off with five out of six, you know, was exhilarating. And I think it redefined judicial politics, at least for this era.

ANNOUNCER: [Phillips television commercial] Who should be chief justice? Prominent Democrats endorse Republican Tom Phillips-

NARRATOR: Tom Phillips was elected as part of Clean Slate '88, running as a Republican and a campaign finance reformer.

ANNOUNCER: [Phillips television commercial] And only Phillips has said no to big money with strict limits on campaign contributions.

Chief Justice TOM PHILLIPS: When I ran for my first term, I put a voluntary limit on campaign contributions and tried very hard to get support from as broad a base of people as possible.

BILL MOYERS: But in more than a decade on the supreme court, Phillips, too, learned to play the money game. [www.pbs.org: Research judges in your state]

Prof. ANTHONY CHAMPAGNE, University of Texas: Tom Phillips has a serious interest in reform, and yet he is probably the best judicial fundraiser in the world. I think he's probably raised more money in his judicial career than any other judicial candidate. So he's sort of caught up in a bad situation where he feels this is improper and distasteful, but the fact of the matter is, this is something that has to be done under the current system.

BILL MOYERS: Phillips was not alone in wanting reform. Justice Bob Gammage, a Democrat, found himself playing by rules he didn't like.

BOB GAMMAGE, Former Justice, Texas Supreme Court: As a candidate, I spent a disproportionate amount of my time on the telephone making calls, going to fund-raising events. That's the way the system is geared. You are a politician by definition. You are running at first in a partisan political primary, and then you're going to be competing with other people who are selected in partisan political primaries on the ballot in November.

BILL MOYERS: Like many politicians, he employed one of the most effective campaign techniques, the negative ad.

BOB GAMMAGE: The more money you have, the more you're permitted to run positive. The less money you have, the more you have to go to the negative. I had less money than any of them. My ads were almost totally negative. I don't like to do that, but I had no choice. I had to penetrate the media markets.

We did not say anything untrue. We did not embellish. We did not exaggerate. We simply pointed out that this gentleman had appeared in court in his pajamas, that he had been jailed for contempt, and that he appeared at a political outing with a sign around his neck saying "Judge Kook" on it.

BILL MOYERS: Bob Gammage won, but his was a dwindling breed of Democrat rapidly disappearing from the courts. In 1995, he and Phillips formed a bipartisan alliance to reform campaign finance laws. They persuaded the legislature to pass a modest reform law limiting contributions to $5,000 per person. But campaign costs continued to skyrocket. Hospitals, insurance companies, banks, developers together were spending millions of dollars on Texas supreme court races. [www.pbs.org: Reform efforts, Texas and other states]

Chief Justice TOM PHILLIPS: In 1990, I had a very expensive election. I think it was $2.6 million. In 1996, I spent slightly more than my opponent. We each spent in the neighborhood of $2 million on the campaign.

BILL MOYERS: Justice Phillips still insisted on the need for reform. In the meantime, there was the matter of survival.

Chief Justice TOM PHILLIPS: There were considerable efforts to find an opponent for me, and had I unilaterally disarmed, I probably would be on the street today practicing law.

BILL MOYERS: While Tom Phillips stayed in the money race, Bob Gammage called it quits in 1995 after one term. The system, he says, is just too corrupt.

BOB GAMMAGE: People don't go pour money into campaigns because they want fair and impartial treatment. They pump money into campaigns because they want things to go their way. Why else would the contributors be there? They have interests to pursue. They have agendas to pursue. In some cases, they have ideologies to pursue. They're not just bland, benign philosophies. They want results.

BILL MOYERS: By 1998, the battle was over. All nine members of the Texas supreme court were Republicans and, according to critics, staunchly pro-business.

BOB GAMMAGE: Obviously, I would say that they're in control of the court today. There is no one on the court you could identify as being sympathetic with the plaintiff's bar or plaintiffs generally.

BILL MOYERS: A veteran journalist, Walt Borges, prepared this study of the state supreme court's decisions over the past five years. The report found that the court decided 86 percent of the time in favor of physicians and hospitals, and over 70 percent of the time in favor of insurance companies and manufacturers.

WALT BORGES, Court Watch: What we were trying to do was establish what the food chain was in the Texas supreme court. And doctors and hospitals were way up there, even more so than the insurance companies, which traditionally have had the highest win ratio. Manufacturing companies were very successful. At the bottom? The individual who has been injured either financially or physically.

BILL MOYERS: The consumer rights group Texans for Public Justice studies the impact of money on court decisions. Director Craig McDonald cites dozens of examples where campaign contributions create the appearance of impropriety.

CRAIG McDONALD, Dir., Texans for Public Justice: We would never allow umpires in a baseball game to be paid by the baseball players. Yet in Texas we allow the supreme court justices to be paid, if you will, from the very parties who are appearing before them to be judged.

It's the big law firms who appear there consistently, the corporations and the corporate PACs with cases before the judges. And judges at the supreme court level are almost completely reliant on these sources for their seats on the bench. And there are many cases that raise your eyebrows.

BILL MOYERS: One of the "Terrible Ten" court decisions cited by critics is the case of Dikeh Agbor, an 8-year-old boy from Houston, Texas, whose arm was permanently paralyzed during a difficult birth.

COMFORT AGBOR, Mother: During delivery, his shoulders got stuck in the birth canal. And after he was born, we noticed that he didn't have use of his left arm. He also had difficulties breathing, and so he was taken to intensive care for observation. And the doctor, she came back and told us that the baby is fine, except that he is not moving his left arm.

DELIVERY ROOM NURSE: He had a rough time getting here.

KINGSLEY AGBOR, Father: It was tough, yeah.

DELIVERY ROOM NURSE: Yeah.

BILL MOYERS: The nerves in Dikeh's arm had been pulled from his spinal cord. Five months after the birth, doctors performed a nerve transplant. Unfortunately, the operation was not successful.

KINGSLEY AGBOR: I felt that it was my luck, it was just bad luck, and that I would just accept things like it is. But a lot of people advised me that something was wrong, that this type of thing should not have happened, that I should pursue this matter.

BILL MOYERS: The Agbors sued their doctor for malpractice. She quickly settled out of court. But in the course of the lawsuit, the Agbors discovered that St. Luke's Hospital allowed the doctor to practice there even though she had no insurance in the state of Texas and had been the subject of numerous malpractice complaints. The Agbors decided to sue the hospital for negligence.

KINGSLEY AGBOR: We were angry at this hospital because they should have known that this lady did not have insurance to practice there, and they went ahead and let her practice in their facility.

COMFORT AGBOR: And also considering the fact that she's had problems in the past.

KINGSLEY AGBOR: In the past, right.

BILL MOYERS: But a court ruled that under the Texas Medical Practice Act, the Agbors did not have the right to sue a hospital. An appeals court reversed that decision, saying the lower court had misinterpreted the law. Now the hospital appealed, and the case went all the way to the Texas supreme court.

KINGSLEY AGBOR: We just went to court to ask the court to let the people hear our case. That was all we were asking for. And we fought for about four years just to let our voice be heard.

COMFORT AGBOR: Because we felt that this was an issue that involved the people, and so it would be a good idea for the people themselves to-

KINGSLEY AGBOR: To decide.

COMFORT AGBOR: -to listen, to hear us, and then make the decision.

BILL MOYERS: But a jury would never hear the Agbors' case. In a split decision, 5 to 3, the Texas supreme court ruled that the Agbors could not sue the hospital unless they proved that the hospital administrators had acted with malice aforethought. It was one of the court's most controversial decisions.

WALT BORGES, Court Watch: It got three dissents, including the chief justice, that said this is a ludicrous outcome. They basically took a law that was designed to protect patients and stood it on its head and had it protect hospitals.

BILL MOYERS: Chief Justice Phillips insists that politics and campaign cash did not influence the Court's decision.

Chief Justice TOM PHILLIPS: I believe the court erred in that case. But they took a very literal reading of a statute and applied it to the facts of this case. So while I disagreed with the result the court reached in the Agbor case, I don't believe that it's a valid example of a court being influenced by campaign contributors or letting a philosophy run amok.

BILL MOYERS: Craig McDonald believes money and politics did have a profound impact on the Court.

CRAIG McDONALD, Dir., Texans for Public Justice: Agbor is just one of many decisions where the court has rolled back the substance of the law. They're trying to get the civil jury out of the mix. They don't want juries to get cases where they might find a hospital negligent and liable. And so the court has actually rewarded its highest donors. The court is doing exactly what these donors expected it to do when they gave them the $10 million to run their campaigns.

BILL MOYERS: Ten years ago, when the donors to supreme court candidates were mainly personal injury lawyers, the decision in the Agbor case would likely have gone the other way. Now the donors have changed, and the court's philosophy has changed, as well.

JOHN HILL, Former Chief Justice, Texas Supreme Court: That's the system that we're trying to change. In the meantime, we can't turn our backs on the judges we believe should be the judges of choice, and we have to support their election. So we do it, and our firm does it. Plaintiff's bar does it. The defense bar does it. The business community does it. Other interest groups do it. So then you have the problem.

BILL MOYERS: It's a problem that troubles two U.S. Supreme Court Justices.

[on camera] We actually talked to a lobbyist in Texas who boasted that he had succeeded in reshaping the philosophy of the Texas supreme court through an all-out political campaign and very large donations. I mean, what does that say?

Justice STEPHEN BREYER: I think it shows that if you have one group of people doing it, you'll get another group of people doing it. And if you have "A" contributing to affect a court one way, you'll have "B" trying the other way, and you'll have "C" yet a third way. And pretty soon you'll have a clash of political interests.

Now, that's fine for a legislature. I mean, that's one kind of a problem. But if you have that in the court system, you will then destroy confidence that the judges are deciding things on the merits. And if people lose that confidence, an awful lot is lost. They've got to have fair decisions. [www.pbs.org: Read the full interview]

Justice ANTHONY KENNEDY, U.S. Supreme Court: In the political context, "fair" means somebody that will vote for the union or for the business. It can't mean that in the judicial context or we're in real trouble.

BILL MOYERS: What does it mean?

Justice ANTHONY KENNEDY: To begin with, we have to ask, is it fair for the electorate to try to shape the philosophy at all, without campaign contributions? Is this a proper function? I am concerned about that. I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality and commitment to other more constant values as to which there is general consensus.

BILL MOYERS: [voice-over] In Texas, lawmakers are now considering how to reform the system. Some favor merit appointment of judges. Others want to keep elections, but impose strict limits on campaign contributions. The reformers are driven by a new urgency. The state supreme court's own poll found that half the judges themselves believe money influences court decisions. And ordinary people are beginning to doubt the fairness of a system they were taught to believe in.

KINGSLEY AGBOR: The justice system in this country is the best you can get anywhere.

COMFORT AGBOR: I still think so.

KINGSLEY AGBOR: I still think so.

COMFORT AGBOR: It's not perfect.

KINGSLEY AGBOR: But in this particular case, I think something was wrong.

COMFORT AGBOR: I guess they were looking out for those people that make contributions. I mean, we common citizens cannot make that kind of heavy contributions to their campaign, and so we didn't matter. That's how I felt about this whole judgment.

BOB GAMMAGE, Former Justice, Texas Supreme Court: There's an old saying in politics, "You dance with them what brung you." And it's perfectly normal, rational and logical to be grateful to, be deferential to and respectful towards - even perhaps in disproportionate terms - those which brung you, those who helped you get there and you hope will help you stay there. If you don't dance with them what brung you, you may not be there for the next dance.

BILL MOYERS: The consequences for democracy and the rule of law are enormous.

[on camera] The historian Plutarch said in "The Roman Republic," quote, "The abuse of buying and selling votes crept in, and money began to play an important part in determining elections. Later on, this process of corruption spread to the law courts and then to the army. And finally, the Republic was subjected to the rule of emperors."

Justice ANTHONY KENNEDY: There must be a recommitment, a rededication to the Constitution in every generation. And every generation faces a different challenge. We weren't talking about this 30 years ago because we didn't have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem, and we are remiss if we don't at once address it and correct it.

 

 

[Editorial note: Bill Moyers is the president of the Florence and John Schumann Foundation. The reporting and filming for the Pennsylvania sequence was funded through a Schumann grant to the Center for Investigative Reporting for a prior project that did not involve Mr. Moyers.]

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ANNOUNCER: What's happening in your state? FRONTLINE's Web site gives you an interactive map to find out how your judges are selected. Also, a rundown of proposed reforms concerning money in judicial elections, a look at what the Founding Fathers said about choosing judges, the extended video interview with Justices Breyer and Kennedy, a teacher's guide for classroom use, and much more at pbs.org.

Next time on FRONTLINE, Fat. We love it, we hate it.

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ANNOUNCER: Why is it so hard to get rid of fat? And should we?

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