Judges' battles signal a new era for retention elections
By the standards of today's judicial elections, the $3 million that poured into one race for the Illinois Supreme Court this year was a large but not unusual sum. Judicial races regularly attract millions of dollars in contributions from trial lawyers, businesses and other special interests hoping to shape the outcome of the vote, particularly when seats on powerful high courts are on the line.
What was unusual about the Illinois race is that it was uncontested. Chief Justice Thomas Kilbride was on the ballot alone, part of a regular election asking voters whether they want to keep him. These "retention elections" are held every decade for state Supreme Court justices in Illinois.
Kilbride faced opposition from a pro-business group, the Illinois Civil Justice League, that urged voters to oust him over of a string of civil decisions it found objectionable. But Kilbride responded, mobilizing the political and monetary might of Illinois Democrats - including unions, trial lawyers and the party itself - to withstand the group's challenge.
After raising more than $2 million, Kilbride kept his job with 66 percent of the vote, meeting the 60 percent threshold required by Illinois law to stay in office. But he complained bitterly about being forced to turn into a glad-handing politician, something he considers inappropriate for a judge.
"If we are going to allow the courts to be politicized to this degree, where there's more and more big-time money coming in, it's going to ruin the court system," Kilbride told National Public Radio in an interview. "We might as well shut down the third branch."
High court justices in a handful of other states - including Alaska, Colorado, Iowa and Kansas - found themselves in the same position as Kilbride this election cycle. They needed to fend off campaigns to oust them in normally sleepy retention elections, which are almost always won by incumbents without much controversy or major fundraising.
With the exception of three justices in Iowa, who were ousted in a backlash over a contentious ruling legalizing gay marriage, all of the state high court justices subject to retention elections won - although some of them won by only a few percentage points, and not without looking uncomfortably over their shoulders.
Attack in Iowa
Legal experts say that 2010 may be remembered as the year in which retention elections took on all the bruising characteristics of regular head-to-head judicial elections. Kilbride's race, for example, is believed to be the second-most expensive retention election in U.S. history. Negative ads accused him of not only holding anti-business positions, but also siding with sex offenders and murderers.
"From my perspective, this is spillover from the way in which contested judicial elections have been conducted over the last decade," says Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "There is leakage from that particular method of elections over into retention elections."
Even if Illinois provided the most expensive retention election this year, it certainly wasn't the most controversial - or consequential. That occurred in Iowa, where voters took the nationally unprecedented step of ousting three of seven Supreme Court justices after a well-funded opposition group, Iowa for Freedom, attacked the justices over their ruling last year to give constitutional protection to same-sex marriage in the state.
The group, founded by social conservative Bob Vander Plaats, issued punishing radio and television ads against the three Iowa justices, urging voters to vote "no" on their retention as a way to remind judges that the people are watching their decisions closely and ultimately have final say over their government. "It's we the people, not we the courts," Vander Plaats says. The justices decided not to campaign for their retention, although outside groups rallied on their behalf.
The justices' removal will not affect the gay marriage ruling, but it may change the balance of power on the Iowa Supreme Court. Republican Gov.-elect Terry Branstad wants to appoint the three replacement judges, although technically Gov. Chet Culver, the Democrat whom Branstad beat, could make his own appointments before he leaves office in January.
Observers on both sides of the Iowa election agree that its result will reverberate in courts far beyond Des Moines. "The impact on sitting judges is tremendous," says Alexander Bryner, the former chief justice of the Alaska Supreme Court. "Once we have a result that gets rid of sitting judges because they decided a politically unpopular issue, the message sent to all judges on the bench is, 'Be careful.' "
Whether that is a good thing, of course, is a point of debate. Supporters of an independent judiciary say that judges must not become beholden to majority will, but many others believe that courts - particularly in states that do not hold head-to-head elections - have accumulated more power in recent years than initially intended.
The result in Iowa is "indicative of a movement to hold that third branch more accountable," says Matt Arnold, the founder of Clear the Bench Colorado. Arnold's group sought to remove three Colorado Supreme Court justices this year over a series of tax-related decisions. The campaign wasn't successful, but Arnold says it may be a sign of more fights to come.
"A lot of people are waking up to the fact that our courts have been increasingly usurping power that does not rightfully belong to that branch."
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