Exclusive: Business groups poised to turn judges into 'politicians in robes'

Illinois is ground zero for new tactic underwritten by Chamber of Commerce, manufacturing lobby

Campaign donations to members of Congress from secret donors and foreign investors are grabbing headlines this election season.

But in a new twist in judicial elections this year, business groups are targeting judges over single-issue rulings – from overturning medical malpractice limits to upholding gay marriage – in retention races that were originally designed to limit the influence of special interest money.

If this exploitation of retention elections is successful, it could lead to a whole new tsunami of special interest spending in judicial races across the nation, according to a nonpartisan partnership that works to protect courts from special-interest influence.

Ground zero for this offensive is the retention campaign of Illinois State Supreme Court Justice Thomas Kilbride.

In February 2010, Justice Kilbride ruled as part of a 4-2 majority to overturn limits on medical malpractice awards. Though it was the third time the court had taken such a position, Kilbride’s term was winding down and business groups saw a vulnerable opening, Charles Hall of Justice at Stake explained during a two-part interview with Raw Story last week.

Justice at Stake describes itself as "a nonpartisan campaign with more than 50 national partners, working to keep state and federal courts fair and impartial." It's funded by, among other sources, the Carnegie Corporation of New York and the Open Society Institute.

The combined fundraising in the Illinois campaign of more than $3.1 million, received mostly from national business groups seeking Kilbride’s ouster on the one side and plaintiffs’ lawyers on the other, has exceeded spending on all retention elections in the United States over the entire previous decade.

In retention elections, judges seeking another term on the bench have no opponent but instead face a yes-or-no vote on the statewide ballot. Historically, such elections usually receive little funding and the overwhelming majority of judges are reinstated unless they've had conspicuously egregious records.

In Illinois, no sitting state Supreme Court justice has ever lost a retention election.

“I’ve simply never seen anything like this,” said Hall, who’s also the editor of a recent groundbreaking report that revealed that judicial campaign spending had ballooned over the previous decade, jumping from $83.3 million to $206.9 million.

“What we’re seeing now is a much more strategic targeting of judges who rule ‘the wrong way,’” he explained. “And clearly that undermines the whole notion that judges are supposed to be thinking about the law before the politics.”

Hall added, “What we don’t want is judges consulting with pollsters before they write a ruling in a case.”

An “ugly” campaign

The attack ads against Kilbride have been particularly vicious, portraying him as cozying up to murderers, rapists and child molesters.

“We’re used to judges being slammed for supposedly being soft on crime," Hall said, "but this is pretty much scraping the bottom of the barrel in terms of taste and tone.”

FactCheck.org criticized an attack ad by the Illinois Civil Justice League, the group that organized the challenge against Kilbride, saying it “cherry-picks cases in its ad to portray Justice Thomas Kilbride as pro-criminal” and that it bases its claim that “Kilbride chose criminals’ rights over and over again" on “a questionable study that was funded by the league itself.”

The Illinois Judges Association, which is comprised of 1,100 active and retired Illinois State Court Judges, called the attack ads against Kilbride “deceptive,” “dishonest” and “ugly misrepresentations” that distort his record “for political reasons.”

Ed Murnane, head of Illinois Civil Justice League, has said on record, “Our central issue is to remove Thomas Kilbride from the bench,” adding, “We will do whatever we feel is legal and we will be using whatever means necessary and whatever issues will have an impact on voters.”

Most of the money funding campaign ads against Kilbride have come from three national groups -- the US Chamber of Commerce, the American Justice Partnership (an affiliate of the National Association of Manufacturers) and the American Tort Reform Association.

Special interests, though, are found on both sides of this election.

The majority of Kilbride’s campaign funding has come from the Illinois State Democratic Party. But Hall found that most of that cash came from plaintiffs’ lawyers who donated to the Party “explicitly with the intent of backing Kilbride without actually having a lot of law firms names in his contributors list.”

So far Kilbride has raised $2.5 million compared to roughly $650,000 raised by the Illinois Civil Justice League.

But in addition to the over-the-top attack ads against him, there are a few other reasons why Kilbride probably feels he needs all the ammunition he can muster, noted Hall.

First, Illinois has an unusually high threshold for a retention election, where Supreme Court judges need not just the majority of yes votes to remain on the bench but 60% of the vote.

“There’s also a significant population that is conditioned by constant repetition to think badly of the courts, with almost round the clock attacks on courts and judges as being activist and legislating from the bench,” Hall pointed out.

Ads attacking and defending Kilbride ignore real issue

A current retention race in Iowa is similar to Kilbride's in that national groups have also targeted a state Supreme Court justice over a single-issue ruling – a 2009 decision upholding same-sex marriage – and have raised roughly the same amount to launch their challenge.

Yet while the nearly $1.1 million total combined fundraising for the Iowa race is a large amount for such an election, that number has been dwarfed by the total spending in the Illinois race.

But the most conspicuous difference between the two campaigns, Hall pointed out, is that the advertising against Kilbride has had nothing to do with his vote to overturn limits on malpractice suits.

“If you look at the actual ads, they’re not about this at all,” he said. “They’re about whether Tom Kilbride is giving an easy deal to scumbag felons or [in Kilbride’s ads] whether Tom Kilbride is tough on crime and has the endorsements of all the law enforcement groups.”

“So what voters are being asked to vote on could not be more disconnected from what has actually attracted all the money to this election,” Hall continued. “It’s like two parallel universes.”

He went on to explain the inherent disservice to voters in avoiding the real issue.

“For whatever reason, both sides have decided let’s not even try to have the real argument in front of voters. Let’s come up with these issues that we frankly don’t care about because that’s what we think voters care about. And so all these kind of caricatures get invented about the judges going into the race.”

Explosion of money creating widespread doubt

The whole notion that courts are supposed to be fair and impartial is the “bedrock of our democracy,” Hall told Raw Story.

“People believe that if it’s their day in court that they should get a fair hearing before a neutral judge,” he said. “But the explosion of money in court elections over the last decade has created widespread doubt.”

Polling by Justice at Stake has shown that 75 percent of voters believe that campaign donations affect courtroom decisions.

“So the concern is, when all this money is now being spent to put judges on the bench, it raises doubt in the public’s mind – can the court be fair under the circumstances?”

Hall invoked a favorite phrase of his from former US Supreme Court Justice Sandra Day O’Connor, who has been vocal about the growing threat of special interest money influencing the courts.

“When people see all this money spent and they see judges on TV or out making the rounds at political events,” he said, “she says that people start believing those judges are just ‘politicians in robes.’ That’s her quote. It’s a very evocative phrase.”

If retention elections become the new frontier for special interest money, Hall fears that Americans may start viewing more and more judges as merely politicians in robes.

Brad Jacobson is a contributing investigative reporter for Raw Story. You can follow him on Twitter.