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Commentary: Candidates go down the rabbit hole to get a seat on the bench

This article first appeared in the St. Louis Beacon, June 21, 2009 - There's no White Rabbit frantically tardy for a very important date, no Queen of Hearts demanding the death penalty for whomever painted her roses red and no Cheshire Cat celebrating the zaniness, but Lewis Carroll's Alice would find plenty to bedazzle her in the wonderland of Illinois judicial politics.

Imagine seeking a seat on the state's Supreme Court. You must campaign without acting like a true candidate. You must court voters without disclosing how you would rule in a courtroom. You must amass a treasury without knowing exactly who contributed and how much - attending fundraising events while theoretically sporting a Lady of Justice-like blindfold.

The legal establishment properly objects to making promises or solicitations that could compromise a jurist's objectivity or create even the appearance of bias. It also disdains intemperate behavior on both the bench and the stump. Thus, you must sift every syllable in drawing distinctions between you and your foe.

Meanwhile, heavily bankrolled interest groups, free from such strictures, can independently air TV ads that savage either you or your opponent. Yet, you cannot retaliate in kind if your record or reputation is assaulted, and you will be pressed by earnest do-gooders and the media to condemn commercials that attack your foe.

You must compete, but oh so gingerly, in large districts where too many people are influenced by the rot in deceptive commercials.

Now comes the U.S. Supreme Court to further complicate matters. If elected, you will have a new, imprecise standard for determining whether you should disqualify yourself from ruling on disputes affecting interests that made the megabuck contributions you were not supposed to know about or screened 30-second spots over which you presumably had no control.

The federal court has ruled, 5-4, that a new member of the West Virginia Supreme Court of Appeals should have recused himself from a case involving a corporate honcho who, while the matter was headed for the high court, had contributed $3 million toward his campaign. Instead, the judge cast a crucial vote in reversing a $50 million jury verdict against the benefactor, who had donated more than all his other backers combined.

"We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent," Justice Anthony Kennedy opined.

Chief Justice John Roberts cogently countered state court jurists would have difficulty applying the standard to less stark situations.

But the high court decision highlighted the potential for big money to undercut judicial credibility in Illinois, where nearly $10 million was spent on behalf of the two candidates for a Supreme Court seat in 2004 and $3 million more was poured into an appellate court battle in 2006.

At the very least, Illinois could move to public financing of Supreme Court contests. Many of us advocate more dramatic reform. We would empower a governor to choose justices, subject to Senate confirmation, from nominees provided by a diverse, blue-ribbon panel.

The current system has produced some outstanding jurists, and no alternative is unassailable. Even with public financing and limits on direct contributions to judicial candidates, independent groups would remain potent - probably even more so. Skeptics of gubernatorial empowerment point to Rod Blagojevich. Nevertheless, safeguards can produce a process that enhances public confidence in our courts.

Lewis Carroll and the Cheshire Cat would not like it, but Illinois would be a better state.

Mike Lawrence retired Nov. 1, 2008, as director of the Paul Simon Public Policy Institute at Southern Illinois University.