Ten years after the nation's most expensive state supreme court race played out in southern Illinois, the victor, in his bid for retention, now faces the same kind of fierce opposition as he did back then.
"Here we go again," lamented Bert Brandenburg, executive director of Justice at Stake, a group that dubs itself as "a nonpartisan, nonprofit organization working to keep America's courts fair and impartial."
Brandenburg said the 2004 contest between Democrat Gordon Maag and Republican Lloyd Karmeier still stands as the most expensive contested judicial race ever recorded with total spending at $9.3 million. Amounts raised by both sides were roughly equivalent.
Karmeier won the election by a margin of 54.7 percent (309,521 votes) to Maag's 45.3 percent (256,339 votes).
To be retained Nov. 4, Karmeier must get 60 percent voter approval.
In this year's election cycle, total spending is currently at $3 million. While that amount pales somewhat to what was raised a decade ago, the 11th hour negative campaign may help explain the difference.
Karmeier's campaign committee, which formed in late August, had not aggressively raised funds until it faced attack by a group of attorneys who were on the losing side of decisions Karmeier participated in 2005 at the Supreme Court. By the time the negative ads began airing, Karmeier's campaign had only raised about $130,000 in contributions coming from a couple dozen individuals, businesses and other GOP committees. But last week, Karmeier received support of about $1 million from a Washington-D.C. group - Republican State Leadership Council - that began airing response ads.
The anti-retention committee - Campaign for 2016 - first launched its attack two weekends before the election. The organization has so far raised about $1.9 million from six attorneys and law firms and is spending the money mainly on television advertising that suggests Karmeier voted to reverse judgments against State Farm and Philip Morris after the companies supported his campaign in 2004. The lawyers supporting the anti-retention effort stand to gain billions in attorneys' fees if those judgments are restored. Both cases have been revived and are playing out in state and federal courts.
“Partisans and special interests often rely on last-minute campaign ads to turn out their base and tip judicial contests,”Bradenburg said. “Voters get a barrage of nasty ads and scary music, but little of the information they need to make informed choices.”
Bradenburg also is critical of the effect that interest group-sponsored negative advertising has in general.
He said that it tends to keep "good people" out of contention for judgeships.
In a system where judges are selected in partisan races, Bradenburg said there needs to be a way to "insulate" persons seeking office.
"We can't expect judges to also be politicians," he said.
Others also have been critical of the campaign against Karmeier.
"The irony of the current negative campaign is remarkable," wrote David H. Levitt, president of the Illinois Association of Defense Trial Counsel, in a letter to the editor.
"Ten years ago, plaintiff attorneys spent approximately $5 million unsuccessfully attempting to elect their own candidate to the Court and defeat Justice Karmeier – and now they are spending millions more to have you believe that there was something improper about how the Karmeier campaign was funded.
"As long as judges are elected in Illinois, they will need to finance their campaigns. There is nothing improper about raising money. We do not contest the First Amendment right of these plaintiff lawyers to run ads or take a position, but the electorate should know the truth – that these lawyers are looking out for their own personal financial interests, not for the interests of the justice system or the State of Illinois. Keep this in mind when you cast your vote."
State Sen. Dave Luechtefeld (R-Okawville), a long time ally and chief supporter of Karmeier's candidacy in 2004, said that it would mean "going backwards" if the lawyers sponsoring the attacks prevail.
"With their vast fortunes, this attorney group is trying to intimidate the court and buy the bench by determining who sits on the highest court in the state," Luechtefeld wrote in a letter to the editor.
"Justice should never be for sale or influenced by a fat checkbook."