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Commentary: Elections can try judges without rules of evidence

This article first appeared in the St. Louis Beacon, April 11, 2010 - Justice Thomas Kilbride won his Illinois Supreme Court seat a decade ago as an underdog who surged while the other side snoozed, but he won’t keep it the same way. Kilbride almost certainly will come under siege this fall in his western Illinois district – and so might three fellow justices from the Chicago area – as leading advocates for curbing litigation seize a rare opportunity.

To garner new 10-year terms, Kilbride, Thomas Fitzgerald, Charles Freeman and Robert Thomas must gain 60 percent approval from voters casting “yes” or “no” verdicts on retaining them. All except Thomas recently joined a bare majority on the seven-member court to overturn medical malpractice award limits that were assailed by victims of physician errors but hailed by others as halting an exodus of doctors from Illinois.

By capitalizing on that volatile opinion and a possible wave of anti-incumbent sentiment among disgruntled Illinoisans, activists from the business and medical sectors could make a realistic run at the relatively low threshold required to jettison a judge.

The unprecedented rejection of an Illinois justice – or a decision not to seek retention in the face of a robust challenge – could traumatize and destabilize the judiciary. It also would dramatize the need to banish the selection and evaluation of judges from the ballot.

Judicial contests now lure mega-contributions from competing interests in colossal court battles. They feature 30-second ads that distort positions taken by judges and lawyers in upholding the rights of repugnant defendants. They undermine the credibility of winners viewed as beholden to those who funded the commercials that helped elect them.

About $10 million was poured into a 2004 battle for a Supreme Court seat from southern Illinois largely to fund television spots that, among other things, depicted both candidates as soft on child molesters in skewed representations of decisions they rendered as lower court judges.

Democrat Gordon Maag not only lost the race, but his fallback bid for retention as an appellate court jurist was rebuffed after the assault on his record. The winner, Republican Lloyd Karmeier, entered the Supreme Court with a “highly qualified” rating from the Illinois Bar Association, but the judge endured litigants’ challenges to his integrity and professionalism after participating in cases involving campaign supporters.

Organizations representing doctors, hospitals, manufacturers and other businesses rallied behind Karmeier four years ago as part of a national trend to impact state court decisions. Those entities, often defendants in liability suits, also viewed Kilbride’s 2000 triumph as tipping the balance toward lawyers who make millions by suing them and contribute substantially to the campaign coffers of Democratic chieftains who slate judicial candidates.

Not surprisingly, Kilbride looms as prime prey this year. Democratic powerhouse Michael J. Madigan received much credit 10 years ago for the Quad-Citian’s stunning victory over a heavily favored Republican legislator. Thus, Kilbride stands vulnerable in his downstate district to a takedown strategy that demonizes Madigan, links the justice to Chicago politics, takes not-so-poetic license with his opinions in criminal cases and condemns him for thwarting medical malpractice reform. Thomas, a DuPage County Republican, and Cook County Democrats Freeman and Fitzgerald seem significantly more insulated.

But, in the final analysis, how does any judge defend himself against a retention rebellion? If individuals or groups supporting him solicit big bucks to counter negative commercials, is he compromised in pending high court cases? Does he accept help from party leaders in a supposedly nonpartisan retention process? As many as four justices may feel like defendants in the months ahead, but we ultimately need to put the lunacy of the system on trial.

Mike Lawrence, former director of the Paul Simon Public Policy Institute at Southern Illinois University, writes a twice-monthly column.