Should judges who received a million dollars each from Gov. JB Pritzker for their campaigns recuse themselves from decisions on the constitutionality of two of his pet pieces of legislation — the SAFE-T Act and the assault weapons ban?
That’s a predictable and fair question which surely has occurred to many Illinoisans. Recusal probably isn’t in the cards for reasons I will explain, but the question certainly didn’t warrant Pritzker’s answer, which was smug, autocratic and unresponsive.
The question was put to Pritzker last week by Greg Bishop of Center Square. Pritzker donated a total of $2 million from two separate accounts to then-Illinois Supreme Court candidates Mary O’Brien and Elizabeth Rochford, $1 million each, for their recent elections.
Pritzker started with the go-to response used by today’s left: “right wing.” Just brush off any question you don’t like as being from the right wing. “I am sure this is something that the right wing is trying to stir up,” Pritzker said. “I know you’ve written about it.”
He went on to say it was “ridiculous” to suggest that anyone who received money from him should have to recuse themselves. “And I’ve certainly never asked anybody to vote a certain way or decide on a case a certain way. I would never do that. I never have and I never will.”
That’s no answer, either. Nobody ever suggested that he directly asked for a quid pro quo. The obvious issue, instead, is whether human nature creates a sense of obligation. Even the most ethical among us may be influenced by the sense of gratitude from a million dollar gift.
Watch a video clip of Pritzker’s answer, the tone of which also shows his disdain for the fair question.
Under Illinois’ system, recusal is generally not required because of campaign contributions. However, that’s not a very satisfying answer.
Illinois’ Code of Judicial Conduct generally speak to “disqualification,” not recusal. “A judge shall be disqualified in any proceeding in which the judge’s impartiality might reasonably be questioned,” says Rule 2.11.
You might think that a million bucks in campaign contributions pretty clearly makes impartiality reasonably questionable, but that’s not how the Illinois system works. The general idea is that judicial candidates’ campaign committees, not the candidate, do the campaign fundraising, as reflected in Rule 4.4, and that somehow removes any taint.
Yeah, right.
Here are pictures of Pritzker with the two supreme court candidates in question. The O’Brien picture from Pritzker’s Facebook page says, “This November, it’s all on the line. It’s so important we elect Democrats like…Mary Kay O’Brien up and down the ballot!” And the one with Rochford from her campaign’s Facebook page says, “Always a great night when you can receive an award AND spend time with our amazing Governor JB Pritzker and the lovely first lady MK Pritzker.”
Rochford and Pritzker
O’Brien and Pritzker
The notion that candidates are separate from their committees is fantasy, but that’s the premise in our system.
While the justices therefore face no mandatory disqualification, whether they could choose to voluntarily step aside is apparently a different matter. The murkiness there is illustrated in a decision last year, Sigcho-Lopez v. Illinois State Board of Elections, in which three justices voluntarily recused themselves, leaving only four justices to decide the case, which is the minimum needed for a majority opinion. They offered no reason for their recusal that I can find, so that’s apparently acceptable.
It’s therefore conceivable that the justices who got Pritzker money would step aside voluntarily, recognizing the exceptionally large amount of money at issue and the importance of the cases. On the other hand, they wouldn’t want to set a vague precedent about recusal based on campaign contributions. I wouldn’t expect voluntary recusal in any event.
You are not alone if all that leaves unsatisfied about the recusal issue. Chicago Appleseed, a public interest law center, put it this way several years ago, and it still applies:
At this moment in time, the precise changes to the recusal canons are less important than the Court’s understanding that the existing rules are no longer sufficient for public confidence in the independence of the judiciary. Courts cannot function when their communities do not believe they are impartial, ethical, and governed without bias. A court which remedies its own weaknesses may earn the trust of all of us.
That’s why a thoughtful, responsive answer would have been appropriate for the question put to Pritzker, not the obnoxious and condescending one he gave.