Public Defense

Politicizing judicial elections

By Gideon

It’s election season, which means we’re all subjected to those horrible bipartisan attack ads, each side proclaiming that the other is a vicious child molester who eats babies for dinner while swimming on corporate money, stolen from the pockets of hard-working, salt of the Earth middle Americans.

That’s de rigueur and to some extent, we’re all immune to it. But what happens when that same poisonous tact starts to infiltrate the re-election of a Supreme Court justice? That’s exactly what’s occurring currently in Illinois, where the retention campaign of Supreme Court justice Thomas Kilbride has been met with some vicious attacks ads on the radio, leading him to fundraise millions of dollars to mount his own campaign. Oh, and he’s running unopposed. There. Is. No. Other. Candidate.

While listening to this story on NPR this morning, I was a little befuddled by this fact. The reporting did not explain it at all and only when I came across this website, did it become clear: in order to retain his seat on the Supreme Court, Kilbride must get 60% of the vote. The pro-business Illinois Civil Justice League is trying to ensure that he doesn’t.

Ed Murnane leads the pro-business Illinois Civil Justice League, Kilbride’s leading critic. Murnane rallied the business community after Kilbride voted this year against limits on medical malpractice claims.

“It became obvious that Thomas Kilbride not only had the worst record on civil issues,” Murnane said, “he also had a terrible record on criminal issues, and we thought the voters of Illinois who are being asked to send him back to the Supreme Court for 10 more years needed to know about his record.”

Those radio ads? Incendiary fear-mongering of the worst kind: the misleading kind

The ads include some violent content from actors pretending to be criminals.

“I was convicted of sexual assault of three different children,” one ad begins. Another voice adds, “I was convicted of shooting my ex-girlfriend in the face and murdering her sister while our daughter watched. On appeal, Justice Thomas Kilbride sided with us over law enforcement and our victims. … Vote no on retention of Supreme Court Judge Thomas Kilbride. It’s way down on the ballot, but please make it a top priority.”

The state bar association, retired judges and police groups have denounced the ads as unfair and inaccurate. Kilbride offered a more personal response.

“I think they’re deplorable,” Kilbride said. “They’re horrific. I think they’re vile.”

Kilbride said those criminal cases dealt with procedural issues. And he says none of the defendants were released from jail or got lighter sentences because of his rulings.

And here’s the brilliance of this tactic – and the problem inherent in judicial elections: normally, if you wanted to further your agenda, you’d have to get many of “your people” elected to the state legislature, where they could then attempt to shape policy. Not so with judicial elections. You get 1 or 2 votes on a Supreme Court and there’s a more direct route to impacting the law of the State. And in an election season, the independence of the judiciary can come under question by those motivated by political agendas.

Now, some may say – validly – that the same can happen with judicial selection. A Governor of one stripe will nominate judges who are from their tent. That may be true to some extent (for example, Governor Rell nominates slightly more Republican judges than Democrat), but on the whole, the election of a governor reflects the overall political philosophy of the State, so the nominations won’t be that out of tune with the electorate. Take Connecticut. Despite the prevalent belief of outsiders (particularly those in Texas – I’m looking at you, Bennett), Connecticut is a moderate state. We elect moderately Republican governors, who appoint moderately conservative justices. Moderate state, moderate judges. One is like the other. You get what you pay for. Blah, blah.

But manipulating the makeup of a court by pumping millions of dollars (the Kilbride race is now the second most expensive single candidate judicial election in the history of the country) into a partisan, vindictive political campaign? There’s just something that stinks about that. It offends – or should – our notions of the independence of the judiciary.

Full post as published by A Public Defender on October 26, 2010 (boomark / email).