Commentary on Judicial Selection

Published October 22, 2006 in the Bloomington Pantagraph

Cynthia Canary, Director, Illinois Campaign for Political Reform

Imagine that you are in court, perhaps facing criminal charges or involved in a complex civil matter. What is it that you want most from the judge hearing your case? Would you rather know the judge’s political party and positions on hot button social issues or that the judge hearing your case will be impartial, independent and knowledgeable about the law?

Most of us would choose the latter.

The Illinois Constitution guarantees every resident his or her day in court “for injuries and wrongs which he may receive to his person, privacy, property or reputation.” That guarantee is, however, worthless unless we believe that cases will be heard and decisions rendered fairly and based on the law.

Illinois’ judicial elections, which were once civil, relatively low-cost affairs, are now hard-fought, high-cost contests, particularly at the Supreme Court and Appellate Court levels. These campaigns have taken on the trappings of conventional political races, with high priced media consultants, campaign staffs, and even attack ads. And this change is having a significant impact on how Illinoisans perceive the judiciary.

A 2004 poll, commissioned by the Illinois Campaign for Political Reform (ICPR) and the Paul Simon Public Policy Institute at Southern Illinois University, showed a widespread belief (about 85%) that campaign contributions, political party leaders and special interest groups influence the decisions of judges in Illinois. While nearly 73 percent of those polled prefer an election system to an appointment process, more than 71 percent said that candidates should run without political party labels.

Voters also want more information about judicial candidates. Over 85 percent of respondents supported the creation of an objective voters’ guide that would be distributed to voters by the state government.

The poll suggests that too little public information and too much campaign money threaten to undermine public confidence in Illinois' courts and the elected judges who preside over them.

ICPR believes that instituting a carefully structured, voluntary public financing system for Illinois' top court races, coupled with neutral voters’ guides, will enhance public confidence in the judicial system and protect judges from both the reality and the perception of undue influence. Public financing for top Court elections will enhance judicial accountability to the public, while combating the influence, whether real or perceived, of special interests by reducing the need to raise and spend ever increasing amounts to campaign.

Spending on Illinois Supreme Court races has skyrocketed since 1992, when a five-candidate field for the First District seat in Cook County combined to spend $804,000 in the primary. Twelve years later, in 2004, just two candidates combined to spend $9.3 million in their battle for the Supreme Court seat in Illinois’ Fifth Judicial District in far Southern Illinois. This race not only broke Illinois records but also national records for the most expensive supreme court contest.

To raise the millions of dollars necessary to compete, judicial campaigns must look to sources of money traditionally tapped by legislative campaigns: political parties, interest groups, labor unions and business. In the 2004 Fifth District race, the major players on both sides had their checkbooks open. Trial lawyers wrote six-figure checks to the Democratic Party of Illinois, which contributed $2.8 million to the losing campaign of Judge Gordon Maag. The U.S. Chamber of Commerce contributed $2.3 million to the Illinois Republican Party, which passed that money through to the victorious Lloyd Karmeier campaign.

Much of the $9.3 million that was raised in the Fifth District was used to fund a volley of televised attack and counter attack ads. Many of these ads misrepresented the facts, confused the voters and further undermined public confidence in the courts.

By all appearances, the trends of increased spending and hardball campaigning may continue into the 2006 campaign. Illinois will not have another Supreme Court race until 2010, but the pitched rhetoric and big money campaigns we’ve seen at the Supreme Court level appear to be seeping into our Appellate Court contests.

Illinois is beginning to awaken to the dangers this situation presents. While some feel that the merit selection of judges is the best way to address undue influence, the majority of Illinois citizens appear loathe to give up their right to vote for judicial candidates.

If Illinois is going to stick with an elective system, then we must commit to making judicial elections work. Two steps will help to restore integrity to our judicial contests. Public financing will allow judicial candidates to avoid relying on contributions from people and organizations with an interest in the outcome of court cases. Providing unbiased voters’ guides will give Illinoisans the necessary information to make informed decisions.

Justice is compromised whenever the public fears that campaign contributions influence judicial decisions. Without public confidence in its impartiality and independence, our judicial system loses credibility – and the promise of our day in court becomes meaningless.