Has the time come for Illinois to reconsider the manner in which it selects its judges?

The question seems timely: A campaign finance reform task force is weighing public financing for judicial elections, in part to counter a generally held public view that campaign contributions affect courtroom decisions. Meanwhile, dozens of candidates for judicial posts — from the Illinois Supreme Court to circuit court — are scurrying to raise money for next year’s primary and general elections. 

The heightened interest in how judicial hopefuls pay for their campaigns comes on the heels of an unprecedented effort in 2010 to oust Illinois Chief Justice Thomas L. Kilbride from the high court because of his vote to strike down caps on medical malpractice awards, a campaign marked by record spending and relentlessly negative attacks depicting the justice as soft on crime.

Kilbride ultimately won a second 10-year term, but his winning effort cost about $2.7 million, most coming from Democratic Party coffers, labor unions and trial lawyers who opposed the caps.

The anti-Kilbride forces — largely business and manufacturing interests that wanted the limits — dropped some $713,000 on the race, making the contest the second most expensive retention election in the nation’s history.

Six years earlier, the two major parties’candidates for an open Illinois Supreme Court seat in southern Illinois set a national record by spending almost $9.5 million, mostly for negative ads that made no mention of the underlying issue, again tort reform, but instead trashed each other for a multitude of purported shortcomings.

Nor is Illinois alone. In the 2009-10 election cycle, candidates and special-interest groups spent nearly $38.4 million on state supreme court elections, on top of more than $200 million the previous decade, according to The New Politics of Judicial Elections 2009–2010, a report issued in October by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics. The 2000-2009 total more than doubled the $83.3 million in campaign fundraising the decade before.

Mirroring Illinois’ experience, the national study noted several troubling developments:

• Spending on judicial retention elections increased dramatically. Candidates in retention elections raised just $2.2 million nationally from 2000–09, the study reported, barely 1 percent of the nearly $207 million raised by high court candidates overall. Kilbride alone raised more in his 2010 fight to keep his seat, and retention elections nationwide cost almost $5 million, about 13 percent of all spending on judicial elections.
• Independent expenditures by state political parties and special interest groups totaled $11.5 million — almost 30 percent of all money spent on last year’s high court races, up from less than 20 percent in 2005-06, the last nonpresidential election cycle.
• Almost $17 million went for television advertising — the most ever on judicial contests in a nonpresidential election year. Nearly 30 percent came from independent groups with no ties to a candidate — far higher than four years earlier. The outside ads “often resorted to rank character assassination against sitting judges ... involving misleading claims that judicial candidates were soft on crime,” the study found, while candidates “continued to run predominantly positive, traditionally themed advertisements.”

To cope with the explosion in special interest money, the study noted that some states are moving to public financing for their courts, as the Illinois task force is considering. But prospects for enacting such a plan here seem slim, given the state’s perilous finances. Moreover, while public financing might spare judicial candidates from soliciting campaign funds that could pose future conflicts of interest, it would have little impact on the onslaught of attack ads by outside groups exercising their First Amendment free speech rights.
Were Illinois to appoint its judges, though, both the need to raise money to run for the bench and the temptation to wage nasty campaigns would be eliminated. While the idea might seem alien in Illinois, most of our sister states have some form of so-called merit selection, instead of electing their judiciary. Indeed, only a handful of states elect judges in partisan elections, according to the American Judicature Society.

Strong arguments exist for electing judges, of course: In a democracy, citizens should have the right to choose their leaders and hold them accountable, rather than have some elite group select those making key decisions. Popular elections also result in a bench that’s more diverse, better reflecting a community’s demographics, advocates say.

But should judges be seen in the same light as lawmakers or executive officials, who are expected to use their best judgment but also reflect the wishes of their constituents? Judges, on the other hand, owe their allegiance only to the law and are expected to interpret and apply it impartially.

Moreover, how well-informed is the average voter about the men and women running for judicial office, particularly in Chicago and its suburbs? Not very, numerous surveys suggest; instead, such voters tend to choose party labels or nice-sounding names.

Merit selection proponents respond that under a well-crafted system for appointing judges, nominating commissions comprising attorneys and lay citizens could evaluate potential candidates and recommend the best to whoever makes the appointments — the governor in most states — to fill judicial vacancies.

And if the system included reappointment for judges who meet defined performance standards, as a half dozen or so states do, rather than requiring them to run for retention, multimillion-dollar outlays for attack ads would be history.

In fact, a merit selection plan was submitted to Illinois voters as an alternative to elected judges in the 1970 election in which the current Constitution was ratified. The appointed option was approved by almost 100,000 votes in Chicago and the suburbs, despite opposition from the Cook County Democratic Machine. But downstate voters rejected the plan by almost 250,000 votes, and Illinois kept its elected judges.

Since then, legislators have offered more than three dozen amendments to change the way judges are selected, but none have gone to the voters. With even judicial retention campaigns coming to resemble more closely the bare-knuckled, partisan brawls waged by legislative and executive candidates, perhaps the idea deserves a closer look next session. 

Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois Springfield.

Illinois Issues, January 2012