Illinois should modernize its Supreme Court justice retention system
If you think it’sweird that, in one of the most important, expensive and high-profile races in Illinois this year, Illinois Supreme Court Justice Thomas Kilbride is, in effect, running for retention against “Somebody Else” and needs to win in a landslide to claim victory, you’re right.
Illinois is the only state where justices on the high court have to earn a supermajority 60% “yes” votes to keep their seats, according to Bill Raftery, a senior analyst for theNational Center for State Courts who follows such elections nationwide.
The only other state to require a supermajority for retention on its Supreme Court (Raftery prefers the term “court of last resort” since top judicial panels in some states go by different names) isNewMexico, and the threshold there is just 57%.
There’s no single common method among the states for installing and retaining high court judges. Raftery has identified 21 different systems, including mixtures of partisan and nonpartisan elections, head-to-head matchups and retention elections with no opponents, nominating commissions and gubernatorial appointments. Terms range fromsix years to life. The number of justices is either five, seven or nine.
Illinois is one of 28 states that have seven Supreme Court justices, one of 12 in which the justices have 10-year terms and one of only seven that hold partisan elections to fill vacancies on the bench. Pennsylvania’s system comes closest to ours, but the seven Supreme Court justices there need only win a straight majority of yes/no votes every 10 years in order to keep their seats.
Why the 60% threshold here? Raftery says it dates back to simpler times— not all that long ago! — when even state Supreme Court elections tended to fly under the radar screens of average voters.
“The ideawas that, since re
tention electionsweren’t competitive, therewould be little to no money behind the opposition and so winning ought to require more than a simple majority,” he said.
That assumption still makes sense for lower-court judicial retention elections, where even the most attentive voters tend to carry recommendation lists to the polls, and many just shrug and leave that part of the ballot blank. But it no longer makes sense in an era when courts and court battles have become highly politicized and an era when partisans have recognized the importance of state supreme courts in shaping our governance.
Raftery pointed to Iowa, where in 2010, three Iowa Supreme Court justices who had upheld same-sex marriage rights in a 2009 case lost their retention bids
after socially conservative organizationswaged intense negative campaigns against them.
This year in Illinois, deeppocketed and highly motivated Republicans are out to end the judicial career of Kilbride, who ran andwon as a Democrat in his generally Republican Downstate district in 2000, andwon retention in 2010 after the Democratic Party poured nearly $1.5 million into supporting him. Illinois judges are not identified by party on retention ballots, a nod to the aspiration symbolized by the blindfold on Lady Justice.
Asmy colleague Ray Long explained in a lengthy recent article on this contest, Kilbride is part of a 4-3 Democrat-leaning majority on the high court, and replacing him with a Republican would again give the GOP a hand on at least one of the levers of
power in state government. Highrolling Republicans have donated close to $5 million to the antiKilbride effort, and state Democratic Party chair MichaelMadigan, the veteran speaker of the stateHouse, on Tuesday donated $550,000 to a campaign to help Kilbride.
TV attack ads and mailers are linking Kilbride to the deeply unpopular speaker, inviting voters in the district that stretches the width of the state south of Chicago to “defeat MikeMadigan’s favorite judge.”
Kilbride also has been praised and supported by many top Republicans, including two former U.S. attorneys, two former state Supreme Court chief justices and formerHouse Minority Leader TomCross of southwest suburban Oswego.
“Somebody Else” is a real opponent here, in otherwords, and this race is very high on the radar screens of Downstate voters. It’s nonsensical to pretend thatwe’re still in the erawhen our most powerful state courts are above and apart fromrawpolitics, futile to expect thatwe’re ever going back and unfair to ask Kilbride to wallop this hypothetical butwellfunded foe by a greater margin than any governor haswon the state since 1994, when Republican JimEdgar beat Democrat Dawn ClarkNetsch 64% to 34%.
It’s also unfair to ask voters fromKankakee toMoline to choose between an actual judge and a pig in a poke. If Kilbride fails to win 60% of the vote on Nov. 3, the district will hold a partisan election in 2022 to fill his seat with JusticeTBD.
It’s time for us to change the rules and stop pretending that sitting judges are nonpartisan. When future Supreme Court justices’ terms are up, let them run one-on-one as incumbents against the best candidates the opposition can put forward, and whoever gets the most votes wins. Like, you know, in a democracy.
A dozen states already do it thatway, Raftery said. So, in case youwereworried, itwould not be weird at all.
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