Analysis

Ill. High Court Judge's Defeat Will Bring More Political Attacks

Law360 (November 5, 2020, 6:17 PM EST) -- Illinois Supreme Court Justice Thomas Kilbride became the first judge in the state to lose a high court retention bid, in a defeat that followed sustained political attacks that experts say could be a sign of the increasing politicization of the judiciary.

Justice Kilbride's tenure in the state Supreme Court will end in December after he failed on Election Day to secure enough "yes" votes to sit for a third 10-year term. He's the first Illinois judge to ever lose a retention bid at the high court level, after interest groups pumped millions of dollars into circulating ads attacking his affiliation with the Democratic Party and purported ties to embattled Illinois House Speaker Michael Madigan.

The attacks against Justice Kilbride didn't touch on his rulings or judicial integrity. Yet the success of the campaign against him signals that voters are more engaged in state judicial races, and that similar attacks should be expected against future candidates, including those vying to either fill or keep the three seats appearing on the 2022 Illinois ballot, experts told Law360.

"My own view is that Justice Kilbride may be the first Illinois Supreme Court justice not to be retained, but he won't be the last," Juliet Sorensen, a professor at the Northwestern University School of Law, said.

Judges in Illinois are required to secure at least 60% of voters' approval to be retained for another term at any level of the state court system. After Election Day results showed that Justice Kilbride likely wouldn't reach that threshold, he issued a statement saying he was "disappointed in the apparent outcome" but "proud of the legacy [he] will leave behind, including a court that is more open, transparent and accessible to all, regardless of economic means." He was first elected to the high court in 2000.

The justice's retention race faced fierce criticism in ads that aligned him with Madigan, who leads the state's Democratic Party and whose political power faced particularly heightened backlash after Commonwealth Edison Co. paid the federal government $200 million and admitted to a legislative bribery scheme that influenced his policy decisions.

Painting an election candidate as an unpopular political figure's ally is not unique to Illinois elections, but this election was one of the first times, if not the only time, such a political attack had been lobbed against a state judge, Harold Krent, a law professor at Chicago-Kent College of Law, told Law360. The success of that attack appears to mark "another step toward increasing partisanship in terms of judges, which I think is unfortunate," he said.

Given Madigan's polarizing political power and the current political climate, it was an unsurprising move and an "easy shot" for Justice Kilbride's Republican peers to use Madigan in their attempts to sway voters from retaining him, Terri Mascherin of Jenner & Block LLP said.

But if the state judiciary is going to remain independent, which everyone should want, then judges "have to be able to serve without fear of repercussion when they make a legal decision that they in good faith ... think is a good decision," Mascherin said.

"They shouldn't have to sit in fear that some well-funded interest group is going to take umbrage with that and fund a campaign to remove them," she said.

Judges up for election or retention generally face criticisms that focus on the decisions they've rendered, or the public's perception of them, as reasons to reject them at the polls, according to Raymond McKoski, a retired Lake County judge and adjunct professor at John Marshall Law School. However, since the political attack against Justice Kilbride worked, future judicial candidates are likely to see similar attacks if there's an unpopular political figure to tie them to, he said.

"That's disheartening to me because I was a judge for 26 years," McKoski said. "Judges should be evaluated on their dedication to the law, their impartiality and their integrity. It should not be some real or imagined association with another figure."

The state high court will appoint a judge to fill Justice Kilbride's seat until 2022, when it will open up for election. His seat will be on the ballot alongside seats currently held by Justice Michael Burke, who will be seeking a full term in the seat he was appointed to in March, and Justice Rita Garman, who will be seeking retention.

Justice Garman may not face the same line of attack during her retention bid as Justice Kilbride saw since she's associated with the Republican Party, Sorensen said. But "if I were Justice Garman's campaign advisers, I would begin to circle the wagons," she said.

"She should anticipate an energized electorate looking for ways to advocate and organize against her retention," Sorensen said, adding that the justice should also pay "renewed attention to her opinions, her rulings and her record as a judge."

And Krent said that given Republicans' success in unseating Justice Kilbride, Democrats should be "on notice that they have to be very focused and invest heavily in the upcoming election to ensure success."

But it is "especially vital" that voters become knowledgeable about the Supreme Court candidates they're voting for or against in 2022, McKoski said. That's true not only because of how many seats will be in limbo at once, but also because of "the money that's going to draw in the judicial races, just like it did this year," he said.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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