From left to right: Thies, Young, Gladstein and DiVito
This is part one in a three-part series on judicial elections. The other two installments will explore judicial selection process in Illinois and the relationship between money and elections.
Although he wasn’t rapping about judicial elections, the late Notorious B.I.G. may have pinpointed one of the major problems facing the judiciary in his 1997 single, “Mo Money, Mo Problems.”
In his song, which was released after he died, the rapper said “it’s like the more money we come across, the more problems we see.”
That sentiment has proved rather true for the judiciary, which has seen a surge in campaign money over the past decade and as a result, found itself at the crux of concerns over judicial independence.
In an attempt to separate the judiciary from the politics that come along with money, some states have changed the way they select judges while others have instituted public financing for judicial campaigns.
A handful of other states, in a nod to the U.S. Supreme Court’s opinion in Caperton v. A.T. Massey Coal Co., have created recusal standards to curb the public perception that money might play a role in judicial decisions.
But, not all of the states, including Illinois, have jumped on board with these reforms, leaving the age-old debate over the need for judicial reform burning strong.
The Better Government Association (BGA) on Tuesday reignited the debate at a panel discussion in Chicago.
Moderated by BGA President Andy Shaw, the panel, “Improving Judicial Selection: Are We Ready for Reform?” touched on the topics of judicial selection, campaign contributions, public financing and recusal standards.
John Thies, president of the Illinois State Bar Association, served as a panelist along with former appellate court justice Gino DiVito, Brian Gladstein, executive director of the Illinois Campaign for Political Reform (ICPR), and Anthony Young, a retired judge and former state representative.
Shaw reminded attendants of Wednesday’s panel discussion that Illinois is not exempt from nationwide concerns over judicial independence and in fact, has had experienced a few situations that some could say support the need for judicial reform.
In 2004, Lloyd Karmeier and Gordon Maag raised more than $9 million in the race for the Fifth District seat on the Supreme Court. Karmeier won the election, which made history for being the nation’s most expensive Supreme Court race.
A few years later, however, Karmeier found himself at the center of a petition seeking to reopen Avery v. State Farm based on campaign donations he had received from State Farm employees.
Although the petition was ultimately unsuccessful, it highlighted the rocky relationship between campaign money and judicial independence, an issue that was debated in the U.S. Supreme Court’s blockbuster opinion in Caperton v. Massey.
In 2010, Illinois again made history for having an expensive judicial race, but this time it was for a retention race.
Chief Justice Tom Kilbride and JUSTPAC, a political action committee that worked to boot him from the bench, raised about $3 million in the retention battle, which put a spotlight on the role special interest groups can play in elections.
The U.S. Supreme Court also recently discussed this issue in its opinion in Citizens United v. Federal Election Commission.
And while it wasn’t discussed during the panel discussion, last year’s situation involving Madison County Circuit Judge Barbara Crowder also highlighted how campaign money can create controversy.
Crowder’s campaign committee received about $30,000 in donations from area lawyers and law firms shortly before she set the court’s 2013 advanced asbestos docket.
After she was removed from handling the asbestos docket, Crowder’s
campaign returned the donations in question.
While the panelists at Wednesday’s BGA event differed on how Illinois can resolve concerns over judicial elections, they all agreed that as long as Illinois continues to elect its judges, money will always be an issue.
“Campaign money is the lifeblood of the election system,” DiVito said.
The danger of requiring judicial candidates to campaign like political candidates is self-evident, he said, explaining that money in judicial campaigns affects the independence of the judiciary just as much as it affects the public’s perception of the judiciary.
Shaw said that Illinois is one of 23 states that elect their judges. Seventeen states, he said, use a merit selection system while 10 utilize a combination of the two processes.
Thies said the ISBA supports merit selection. He said DiVito was involved with the group’s adoption of a merit selection proposal more than two decades ago.
Unfortunately, Thies said the political environment has not been conducive to the idea.
Young, a former judge and state lawmaker, however, voiced support for the election of judges, especially when it comes to Cook County’s sub-circuits.
Elections, he said, allow citizen input and provide diversity to the bench.
Young said there is no proof that merit selection resolves concerns over judicial independence and questions how the process would eliminate politics from the mix when a committee likely comprised of politicians would be in charge of selecting candidates.
DiVito, however, said judicial campaigns are a completely different
beast than classic campaigns for political office.
Judicial rules, he said, prevent candidates from making campaign promises and sharing their views on particular issues. As a result,
DiVito said most voters end up choosing their judicial candidates based on name recognition.
Having a committee nominate candidates to be approved would not only ensure the most qualified candidates are being chosen, but could eliminate concerns over campaign contributions.
“I don’t think there’s a perfect system,” Thies said, adding that the ISBA simply wants to find the one that works best and believes merit selection is the best solution for now.
Recusal and public financing
As the director of the ICPR, Gladstein said his group has stayed out of the debate over judicial selection and instead advocates for the creation of recusal rules.
His group also supports public financing of judicial campaigns; an idea that he said would prevent special interest groups from getting involved in these elections.
Proposals for public financing have been discussed in the Illinois General Assembly over the past few years, but have not gained enough traction to go anywhere.
Gladstein said his group feels strongly that recusal standards would help alleviate concerns that money drives judicial decisions.
Like many states, Illinois does not have rules in place that govern judicial disqualification. A handful of states, however, did so in the wake of the U.S. Supreme Court’s opinion in Caperton v. Massey.
Pointing to a poll that shows more than 80 percent of people are convinced money plays a role in judicial decisions, Gladstein said “we are seeing a real change in how folks view the judiciary” and need to correct that perception.
Recusal standards, he said, would create a level of transparency that the public is craving.
As one of his initiatives as the new ISBA president, Thies created a special committee to look into campaign contributions and recusal standards. DiVito serves as co-chair of that committee.
While many judges do a good job of separating themselves from their campaign committees when it comes to donations, Thies said there is still a need to address the public’s perception of the issue.
He said he hopes the committee will come up with some recommendations on recusal standards by October.
Unlike reforming the judicial selection process and public financing proposals, which go to the state legislature, Thies said the ISBA committee will make its recommendations to the Supreme Court in hopes that it will create its own rule on the matter.
When it comes to judicial reform in Illinois, Thies said “you have to take it one step at a time.”