Kilbride Targeted in Supreme Court Retention Ballot
SPRINGIELD – Illinois State Supreme Court retention races are usually low-key affairs garnering little attention from interest groups and even less from voters, but this year may well be different.
Justice Thomas Kilbride, a mild-mannered veteran of the state’s high court, is being targeted for removal from office by a well-funded group representing business interests.
“Judicial races have become much more politicized in the last 10 or 15 years,” said Mike Lawrence, past director of the Paul Simon Public Policy Institute at Southern Illinois University at Carbondale. “When the state constitution was drafted, I don’t think anyone anticipated the level of politicization in the judicial elections that we have today.”
For Kilbride, the issue is one of judicial independence.
“What people expect of judges is that a judge will listen to a case and hear the totality of the evidence that is properly admitted and listen to the totality of the arguments made by the lawyers, hear the testimony, the witnesses, the exhibits. … What I’m asking is to be judged fairly – to look at the totality of my cases not judge me based on just one case.”
One of Kilbride’s more controversial votes was cast last spring when he and a majority of the court voted to rule a law limiting how much money doctors and hospitals could be sued for was unconstitutional.
Those who supported keeping the law in place made it clear through letters to the editor and public statements that Kilbride would face political retribution if he voted to overturn the law.
“I knew taking the vote that I took in the medical malpractice case there would be consequences,” he said.
But Kilbride added, “We aren’t legislators in robes.”
A judge can only base his decision on his interpretation of legal precedent and the law, he explained.
Kilbride said as judicial races have become more political, outside forces are attempting to shape the judiciary based on how judges vote — not on whether the judges’ decisions are just.
“Everybody has a bias whether they like the White Sox, the Cubs or the Cardinals but if you are going to be umpire in a major league baseball game you can’t be for a team – you have to be fair,” he said.
Every decade, voters are asked if the Supreme Court justice representing their district should be retained. Sixty percent must say “yes” for the judge to stay on the bench.
In the event that a judge is not retained, his former colleagues on the high court appoint a replacement to serve for the next two years when an election would be held.
In a typical year about 75 percent of Illinois voters say “yes” to the question in retention races, according to a study conducted by Larry Aspin, chairman of Bradley University’s political science department.
Aspin said he anticipates so volatile an election this year that he could offer little in the way of a prediction.
But one group likely to play a big role in the retention race is the Illinois Civil Justice League, a group that receives its funding from business and fights to create a more favorable legal environment for companies.
“I kind of feel sorry for these judges. They are vulnerable. Most voters don’t know who they are and typically they are holding on to their seats by (a small) percent,” said Ed Murnane, president of the Illinois Civil Justice League, who is spearheading the effort to have Kilbride removed.
Even his most vocal detractors say that Kilbride is an honorable man.
“Nobody is questioning his integrity or his performance on the bench – the only thing we are questioning is how he voted on a number of cases,” Murnane said.
Murnane said he would like to raise between $1.2 million and $1.4 million to try and unseat Kilbride in the Nov. 2 election.
“We think Judge Kilbride is one of the worst judges out there — he consistently votes against business and in a state like Illinois where there are so few jobs we need someone who will support business,” he said.
Groups representing doctors, hospitals, manufacturers and other businesses that are often sued are part of this trend to reshape the judiciary.
Malia Reddick, director of research and programs for American Judicature Society, labeled the development a disturbing one.
The American Judicature Society is a national nonprofit organization that advocates for impartial courts and improving the administration of justice.
“We need an independent judiciary. It would pretty naïve to think it wouldn’t at least cross a judge’s mind that if they vote a certain way, they might face a battle over their retention and have their name publicly sullied,” she said. “Would that influence how they vote? I don’t know.”
The process can be a vicious one.
For example, in 2004, about $10 million was poured into a fight for a Supreme Court seat from southern Illinois.
Television ads depicted both candidates in that case as soft on child molesters and made twisted representations of decisions the men rendered as lower-court judges.
Democrat Gordon Maag not only lost the race, but his fallback bid for retention as an appellate court jurist fell prey to angry voters. The election results were largely considered a victory for Murnane’s group, which receives much of its funding from the U.S. Chamber of Commerce.
That’s an entirely inappropriate reason to remove a sitting judge from office, said attorney Mary Lee Leahy, a delegate to the 1970 Constitutional Convention.
“Nobody ever dreamed that retention would be used in this way. The idea was to give voters a chance to get rid of bad judges – ones who made sloppy decisions or were rude to lawyers or who behaved in an erratic way. It was never intended to be used to punish judges for voting a particular way. The judiciary has to remain independent and act without fear of retaliation of an interest group,” said Leahy, who has argued cases before both the U.S. and Illinois supreme courts.
But Travis Akin, executive director of Illinois Lawsuit Abuse Watch, sees things differently.
Akin’s group, while officially non-partisan, advocates for greater legal protections for doctors, hospitals, manufacturers and other businesses that frequently find themselves defendants in lawsuits.
Akin said voters should evaluate judges facing retention in any way they see fit.
“This is really a matter between the voter and his or her conscience. They should be able to evaluate judges on any criteria they see fit. But they should be informed,” he said.
But Kilbride, who was elected to the court 10 years ago as a Democrat, worries campaigns such as the one Murnane and Akin have participated in will have detrimental consequences.
The Third District, which Kilbride represents, stretches across 21 counties in northern Illinois and is evenly divided between Republicans and Democrats. It encompasses Kankakee County where he grew up, La Salle County where he was born and Rock Island County where Kilbride lives.
Kilbride is a bit philosophical about the political battle before him.
“Do we want judges looking over their shoulders – wondering if I decide this way I’m going to be criticized?” he said. “This whole politicization of the courts is really going to tear apart the court system. I think it’s bad. It’s not about me – it about the court system. That’s what I’m fearful of.”
Stat Box on Thomas Kilbride
Current Job: Illinois Supreme Court justice for 10 years
Previous Experience: Before becoming a judge, he advocated for local community-based organizations including neighborhood block clubs, and he volunteered legal services for theChildren’s Disability Project. He also helped organize a church-based effort to help struggling families. And in the 1980s, he worked as a legal aid attorney, helping people hardest hit by the sour economy.
Education: Antioch School of Law, Washington, D.C., Juris Doctor, 1981; St. Mary’s College, Winona, Minnesota, Bachelor of Arts, magna cum laude, 1978
Marital and family status: Married to Mary, adjunct mathematics professor at Augustana College, for 27 years, three daughters: Kate, Colleen and Clare
Key endorsements: Illinois Fraternal Order of Police, retired judges of both parties, prosecutors across 3rd Judicial District
Awards: Award of Excellence in the Judiciary from the Illinois State Crime Commission
Reason for seeking to be retained in office in one sentence: “I have devoted myself to ensuring all citizens get a fair shake in the courts, and I have a solid reputation as a fair and evenhanded judge with common sense.”
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