Ends and Means: Public confidence in the judiciary goes down as campaign rhetoric gets nastier
Is justice for sale in Illinois? A lot of people think so. That worries folks like Cindi Canary, and it ought to worry all of us.
“I think there’s a growing perception that’s the case,” says Canary, director of the Illinois Campaign for Political Reform. “In 2002, people expressed a lot of concern about conflicts of interest, about the players in the campaign ending up being the players in the courtroom.”
At the heart of such apprehension is candidates’ growing reliance on special interests to pick up the increasing costs of judicial campaigns, an arrangement that understandably leads citizens to suspect a link between campaign contributions and judicial rulings.
A statewide poll taken just before the last election, for example, found that 86 percent of the respondents believed campaign contributions influence judicial decisions, a third of them “a lot.” Moreover, only 16 out of 830 registered voters saw no influence at all. Nor are Illinoisans especially cynical; a national poll commissioned last year by Justice at Stake, a nonpartisan court reform group, found nearly 72 percent believed campaign money influences judges’ decisions.
While such suspicions may not be warranted, it’s not surprising they’ve found fertile ground in voters’ minds.
Between 1996 and 2000, the amount of money raised in state Supreme Court campaigns across the country more than doubled, according to researchers for Justice at Stake. In 2002, 10 candidates for the highest state court raised more than $1 million for their election campaigns, the group reported.
Much of the money comes from donors with a vested interest in court rulings. Business groups and doctors’ associations want judges who’ll be sympathetic to their concerns about the cost of environmental regulation and the size of malpractice awards. Trial lawyers and organized labor want jurists sensitive to injured people and to downtrodden workers.
Consider the million-dollar race that occurred in central Illinois in 2002. Republican Justice Rita Garman spent almost $1.1 million to retain the 4th District high court seat to which she was appointed when Republican Justice Ben Miller retired. Her Democratic challenger, Appellate Justice Sue Myerscough, spent $841,000 in a losing bid. Add in the $284,000 spent by an unsuccessful GOP primary candidate, and the total cost of the election neared $2.2 million.
Both candidates enjoyed considerable financial help from their respective parties, but Garman also benefited heavily from business and medical groups interested in tort reform, while Myerscough had strong union support.
A statewide poll taken just before the last election found that 86 percent of the respondents believed campaign contributions influence judicial decisions, a third of them "a lot."
But the money the two candidates spent was small potatoes compared to the outlays in high court races two years earlier: Candidates in the northern Illinois 2nd District booked more than $3.5 million in spending, while 1st District (Cook County) candidates spent $2.5 million in the Democratic primary. In the 3rd District in north-central Illinois, meanwhile, court hopefuls spent almost $2 million.
Only one high court spot — in the 5th District — is on the ballot this year, and court watchers expect campaign costs again to exceed $1 million. Vying are Washington County Circuit Judge Lloyd Karmeier, a Republican, and Appellate Justice Gordon Maag, a Democrat. Through June, Karmeier reported taking in some $347,000 since last September, while Maag garnered some $202,000 during the same period. The fundraising pace is likely to pick up as election day draws near; the big money typically floods in late.
The contest also pits some of the state’s most powerful special interests in a bitter battle over how personal injury and medical malpractice suits should be handled. The state Chamber of Commerce, the Illinois State Medical Society and other groups wanting limits on jury awards and class-action suits are with Karmeier. Trial lawyers and unions are for Maag.
So what’s the fuss? Doesn’t the business community generally support Republican candidates, expecting them to be pro-business? Doesn’t organized labor usually back Democratic hopefuls for similar reasons? Isn’t that how electoral politics is supposed to work?
Indeed, the genius of representative democracy is that the citizenry can choose leaders who reflect their concerns and share their agendas — lawmakers who will pass bills attuned to constituent’s wishes and executives who will enforce policies the majority wants. And if the popular will is thwarted, kick the rascals out!
Judges, though, are fundamentally different from other elected officials. A judge’s role is to be a fair and impartial arbiter of society’s conflicts, guided only by the law and the Constitution. In fact, judicial canons forbid candidates for the bench from expressing opinions on matters likely to come before them, although a 2002 U.S. Supreme Court ruling has undercut that prohibition. Still, a judge’s only constituent is the rule of law; he or she is beholden to the Constitution, not public opinion.
Moreover, it’s not just the huge sums required to wage a high court race that bothers reformers; it’s also the way the money is spent. All too frequently the same sort of attack ads and negative mailings used against legislative or executive branch candidates appear in judicial races. As the rhetoric gets nastier, public confidence in the judiciary gets dragged down.
As an antidote, some reformers say that judges, particularly at the supreme and appellate levels, should be appointed. But that notion is a non-starter in Illinois, where polls show overwhelming public support for an elected judiciary, mirroring national sentiment.
To break the elected-vs.-appointed impasse, the American Bar Association in 2002 called for public financing of state Supreme Court campaigns. The Illinois Senate approved such a plan last year, but the measure stalled in a House committee. Under its terms, candidates who agree to forgo other fundraising could receive up to $750,000 from a special fund fed by income tax checkoffs and contributions. The estimated price tag — perhaps $3 million in a busy year — seems a small price to pay to dispel the cloud of suspicion the current, free-wheeling fundraising practices engender.
Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.
Illinois Issues, October 2004