Supreme Court races have become public policy battlegrounds, says observer

By Ken Lowe | Feb 20, 2014


The Illinois Supreme Court Justice whose campaign set a record for contributions 10 years ago is up for retention in November.

Republican Lloyd Karmeier's 2004 election shattered donation and expenditure records in Illinois and throughout the country. His campaign to unseat Appellate Court Justice Gordon Maag and take the Supreme Court position they were both vying for was the most expensive campaign for a state Supreme Court seat in American history to that point. Both campaigns raised a total of about $9.3 million.

Karmeier's campaign relied on copious donations and in-kind contributions from Republican organizations and Chamber of Commerce groups. In the end, Karmeier's campaign raised $4.8 million to Maag's $4.3 million.

Karmeier has until May 4 to declare his intention to run for retention, according to Illinois State Board of Elections rules. He has not yet made any official statement on whether he intends to do so, said Supreme Court spokesman Joe Tybor. Any vacancy created by Karmeier stepping down would be filled with an appointee at the discretion of the court, with a race to replace him that would likely occur in 2016, said a Board of Elections spokeswoman.

The 2004 race changed the fundraising landscape, said David Melton, Executive Director of the Illinois Campaign for Political Reform. The watchdog group filed a complaint against one of the political action committees that supported Karmeier's opponent, incumbent appellate court justice Gordon Maag. That group, Justice For All PAC, poured $1.2 million into Maag's campaign.

"That 2004 race was one of the races that led to a lot of increased scrutiny of this system," Melton said. "The system had problems before, but the increased money pouring in greatly magnified those problems."

It also meant a campaign that played out in the mailboxes and on the airwaves of the metro St. Louis area, with attack ads so vicious that Maag filed a defamation suit against his opponent's supporters. The ads claimed Maag had "let a murderer back on the streets," among other things. The case was later dismissed.

Observers at the time pointed out the irony of Maag's case, on the heels of campaign in which tort reform was a major talking point. Perhaps unsurprisingly, trial lawyers and lobbyist groups donated a combined $1.4 million to Maag's campaign, according to Follow The Hospitals, medical professionals and pharmaceutical companies donated more than $500,000 to Karmeier's campaign during the race, at a time when medical malpractice reform was another issue poised to enter the courts.

Justice At Stake, a judicial watchdog group in Washington, D.C., frequently points to that 2004 race as an example of "haywire" spending on judicial races that has sadly become the norm, said Bert Brandenburg, the group's executive director.

"The Karmeier race turned out to be a harbinger of a trend that unfortunately has spread across the nation," Brandenburg said.

The race and the furor surrounding it were examples of how such races damage the public's perception of the impartiality of the courts, said David Yepsen, Director of Southern Illinois University's Paul Simon Public Policy Institute.

"The costs of these judicial retention elections and the fundraising that goes on around them erode the public’s trust in our court system," Yepsen said. "When people see campaigns for or against judges being bankrolled by the very interests with a stake in issues before those courts, what are they going to believe?"

The race also highlighted the fact that judicial seats have become public policy battlegrounds, with stakes as high as any contested Congressional race, said John Jackson, visiting professor at the Paul Simon Institute.

"Overall, the court races have become more important targets because of the far-reaching impact of their decisions, where they literally make binding policy in many areas which are crucial to the bottom line for companies and groups and their PACs," Jackson said.

Whether Karmeier's possible retention race excites the same ardor as his election did a decade ago could depend on the potential opposition's approach, Jackson said.

"The most critical factor will be whether or not the Democrats decide to target the district and make it a high-profile race again like it was last time, and whether Democrats in the Metro East area decide to plow money into this effort.”

Illinois has seen a recent campaign to unseat a sitting Supreme Court Justice in the $3 million battle over then Chief Justice Thomas Kilbride's retention in 2010. Elected in 2000, Kilbride, a Democrat, handily won his retention campaign. Despite facing no opponent, Kilbride still weathered a campaign that saw the same sort of attack ads that characterized Karmeier's 2004 race. Some of the ads were funded by the same groups which supported Karmeier, including the Illinois Civil Justice League. Kilbride's retention cost Democratic fundraising organizations more than $2 million.

Retention races tend to generate much less money, Brandenburg said, but many of the Supreme Court Justices who have been elected since 2000 have only recently come up for retention.

"I think the jury is still out on whether retention races will be overcome in the way (general) elections have been," Brandenburg said. "We've begun asking ourselves this question, and I don't think there's a clear verdict yet. By and large, retention races on average will still see less money, but there could be more exceptions coming."

Brandenburg pointed to Kilbride's retention effort in 2010, and similar efforts around the country, as indicators that justices have begun treating retention campaigns as serious fundraising efforts.

"[Kilbride] heard opposition was coming, but he raised the money and deterred people from running against him," Brandenburg said. "In Florida, we've seen justices who heard the footsteps and went out to become fundraisers in a way they never really had before."

Ultimately, Melton predicts an expensive and hardfought campaign for the Illinois Supreme Court, whether it focuses around Karmeier's retention in 2014 or a potential race for a permanent justice in 2016, should Karmeier choose not to run again.

"I would imagine that regardless of whether he runs for retention, you're going to see significant amounts of money on both sides," Melton said. "You'll probably see some nasty campaign ads as a result, and the ultimate result will be to increase public cynicism."

Editor's note: The Madison-St. Clair Record is owned by the U.S. Chamber of Commerce Institute for Legal Reform. 

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