By Carl Zielinski
Although previously thought above the campaign tactics of the political branches, in recent years, judicial elections have become the most recent political dark money battleground. Judicial races are considered “low-information,” in that voters are often unfamiliar with specific candidates; advertisements against one of a judge’s past opinions could constitute all a potential voter knows about a given candidate. In this way, a comparatively small amount of money can play a significant role in a judicial election.
The retention bid of Justice Lloyd Karmeier of the Illinois Supreme Court was one such election. Justice Karmeier was first elected in 2004; his race against Democrat Gordon Maag turned into a proxy war between businesses and trial lawyers who had made a career out of suing them. Karmeier came out ahead, but his votes to overturn a $10.1 billion judgment against cigarette-manufacturer Philip Morris and a $1 billion judgment against insurer State Farm made him a target in this year’s race. The case against Philip Morris is still active, and replacing Karmeier might have avoided a repeat of the Illinois Supreme Court’s 2005 decision to overturn the judgment.
Plaintiffs’ attorneys fought strenuously to unseat Karmeier, ultimately spending over $1.3 million to defeat his retention bid. A total of $1.7 million was spent on judicial TV ads alone in Illinois this year, part of a national trend that saw $13.8 million spent on ads for judicial elections. The Illinois figure is significantly less than the $9.3 million spent on the 2004 campaign that first elected Justice Karmeier, but the stakes were lower as well; those hoping to unseat the Justice only needed to scrounge up 40 percent of the vote.
Justice Karmeier retained his seat by the barest of margins, passing the margin required for retention under Illinois law at 60.7 percent. However, the quest for judicial election money in Illinois does not end with Karmeier – Justice Thomas Kilbride raised $2.8 million in 2010 to support his own retention election. Justice Kilbride won his retention bid, despite the best efforts of opponents wanting to jettison judges friendly to large jury awards in malpractice and negligence cases. Interestingly, at least one group supporting Justice Karmeier attempted to oust Justice Kilbride; the Illinois Civil Justice League both “highly recommended” Justice Karmeier for retention and ran the attack ads against Justice Kilbride.
That money has come to dominate elections for the Illinois Supreme Court is alarming, in large part because of potential conflicts of interest inherent in a judge receiving monetary assistance from parties that may appear in that judge’s court. Even if such conflicts do not extend past appearances, it is nonetheless politically feasible to link a judge to the victors in the suits before them. Of additional concern is a recent study that determined that in states with election spending over $3 million, judges begin to side more frequently with prosecutors. Judges have little choice but to sound prosecutorial, when attack ads by groups like the ICJL suggest that judges “side with” murderers and child molesters, as was the case with ads attacking Justice Kilbride in 2010.
These factors together signal an alarming trend in Illinois judicial elections, which will need careful scrutiny in the future. Absent a reversal of momentum at the United States Supreme Court however, developments away from the proliferation money into elections seem unlikely.