Wednesday, November 30, 2011

Politics and "special interest" money in judicial races

In an editorial on Monday, November 21, the Tribune stated, “If we can’t take money out of politics, we can try to take the judiciary out of politics. We need a system of judicial appointment with political checks and balances, a merit system.”

To illustrate of the evils of politics and money in judicial campaigns, the Tribune editorial cited allegations that the Illinois Civil Justice League was a conduit for money from the State Farm Insurance Companies helping to elect an Illinois Supreme Court justice in 2004 who would later making rulings favorable to State Farm in Avery v. State Farm Mutual Automobile Ins. Co., 216 Ill.2d 100, 835 N.E.2d 801 (2005).

The ICJL did not get defensive. In its daily newsletter on the 21st, the ICJL said it supported the Tribune’s call for merit selection (even as it asserted that the recently failed attempt to reopen Avery was based on an “error-filled sworn statement that refers to the ICJL.”). “In fact,” the newsletter stated, “ICJL’s proposal for a change in the way Illinois selects judges was included in an Op-Ed by the ICJL published in the Tribune in April, 2009.”

There are many things the Tribune’s editorial does not explain: how judicial “merit” is determined, or by whom; how judges picked by governors or legislators or even by “blue ribbon” committees (appointed by and responsible to governors or legislators) could choose judges free of the taint of politics; or, most importantly, how an any change in the way Illinois chooses judges is possible in the foreseeable future, given our toxic political climate.

But the Tribune is not alone in fearing that too much money in judicial campaigns will result in justice only for the ‘highest bidder.’ New York University Law School’s Brennan Center for Justice, the National Institute on Money in State Politics, and the Justice at Stake Campaign recently issued a study, entitled The New Politics of Judicial Elections 2009-2010, which makes similar charges. Adam Cohen, a research scholar and lecturer at Yale Law School, recently posted an article on citing this study and stating that “as money floods into judicial elections, we are getting courts that are filled with judges whose first loyalty is not to justice — or to the general public — but to insurance companies, big business and other special interests.”

It would be naive to ignore the danger of creeping partisanship fueled by unthinking political spending. I understand that special interests would love to know that a given judge will always rule in their favor every time one of their cases goes to court. But there is no way to guarantee this without committing outright bribery. Short of the actual commission of a felony, even the most spineless, pliant jurist might get confused, in a given case, over which contributors should get preference. After all, successful political campaigns require the building of coalitions from sometimes conflicting interests. Inevitably these conflicts will burble up in court.

There is an alternative that does not involve the risk of prison: Campaign money should be directed to judicial candidates who are intelligent, knowledgeable, courteous, practical, fair and impartial. That won’t guarantee ‘victory’ for a special interest in any given case, but it will ensure an honest, respectful hearing, regardless of who is on the other side. The most special special interests should want nothing more.

The concerns of editorialists and academics notwithstanding, judicial races are significantly different from others up and down the ballot. Although passions can get aroused, in general, judicial races are generally more civil than other contests. I’ve been covering judicial elections in Cook County since 2007 here on For What It’s Worth. When I published all the bar association recommendations in one race shortly before the 2008 primary, I received an immediate and indignant response from one of the candidates. I had written, he told me, that one of his opponents had been rated Qualified by the Women’s Bar Association. This, he insisted, was not true. In fact, the candidate wrote, his opponent was rated Highly Qualified.

You don’t get that sort of thing in races for the legislature. Judicial elections are different. The role of money is – or should be different – in judicial campaigns as well. The best defense against special interest money corrupting the judicial election process is an attentive, informed electorate. The ICJL helps educate the electorate through its website. In 2010, the Tribune provided a real service to the public by publishing on line the responses judicial candidates provided to its questionnaire. I hope the Tribune will provide that service again this year.

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