Term Limits The Lesson Of Attack On Kilbride’s Retention

Illinois Supreme Court Justice Thomas Kilbride won his retention election last week. About 65 percent of voters in his district voted to retain him. Now he has the option of serving another 10-year term. The lesson of this retention campaign is: The office of judge should have a term limit so judges can to use their powers to support individuals’ and minorities’ liberty.

The Kilbride retention vote caused a lot of hand wringing. Kilbride’s opponents were bashed for politicizing a process the pro-Kilbriders felt should be free from substantive criticism. Kilbride’s supporters said they didn’t like the way Kilbride was criticized for some of his judicial decisions. They shouted that Kilbride’s critics were besmirching “judicial independence” and “rule of law.”

But Illinois judges are political animals. The Illinois Constitution makes sure of that. Judges in Illinois are elected to the bench in competitive contests. And judges are required to stand before the people, who get to decide whether the judge should be retained. If a judge is not deciding cases the way the people want him to, the people can fire him. All it takes is a vote of 40-percent-plus-one to deny retention in Illinois.

The Kilbride retention campaign was remarkable. Illinois judges, and even less so supreme court judges, rarely are challenged in retention votes. But this time, Kilbride’s retention campaign brought an angry challenge led by the Illinois Civil Justice League, which advertised heavily against retaining Kildbride.

Many of the League’s advertisements criticized Kilbride for favoring criminals over law enforcement. But everyone knew the real reason the League wanted to deep-six Kilbride’s retention – he voted with the supreme court majority that ruled caps on jury awards in personal injury cases were unconstitutional.

A good deal of the media in Illinois did not like the League’s campaign. The League was scorned for making the vote a referendum on Kilbride’s substantive decision-making. But demanding special interests to stay out of the campaigns of judicial selection and retention is like asking a dog not to bark. The process of elections is political, and an organization that speaks for a group of citizens is well within its rights to participate in that process.

The League was criticized for smearing Kilbride with false advertising about his judicial record. No one likes to see deliberate lies during a campaign, and the point here is not to say whether the League’s ads were factually justifiable. But election campaigns get rough, and judges as politicians have to do more than claim judicial independence exempts their decisions from the rough-and-tumble of campaigns. If that were so, a judge’s decision-making, if anything short of felonious, couldn’t ever be questioned. And after all, the political process got them their robes in the first place. It’s less than earnest to say a judge’s job performance should not be subjected to the same process.

Citizens vote for judges for many of the same reasons they vote for executive and legislative candidates – a belief that the judge-candidate reflects our values. We hope judges will decide cases fairly given those values.

Judges do have an extra role that doesn’t encumber most other elected officials. If our three-branch system of government is to work, judges must assure that individuals’ rights are respected and they must protect against tyranny of the majority.

But even those additional burdens don’t give judges a pass on the politics of a campaign. Just ask the three supreme court judges in Iowa who lost their retention elections last week. The New York Times reported the three judges were targeted for their votes that overturned a law that defined “marriage” as being only between a man and a woman.

The Iowa Supreme Court voted unanimously against the anti-homosexual marriage law. So there was no strength in numbers in this Iowa retention vote. That makes one wonder about one of Kilbride’s arguments against the Illinois Civil Justice League. The pro-Kildbride campaign argued Kilbride should be retained because he voted with the majority of the Illinois court’s judges nearly 90 percent of the time. Somehow that was supposed to convince voters that Kilbride was a mainstream guy. Maybe he is, but it’s hard to see how mainstream thinking champions individual and minority rights.

Certainly judges can be stampeded out of office for making decisions that are unpopular with the will of the majority. Judges should have some protection against voter backlash for protecting individuals and minorities. That’s where the rubber meets the road when judicial independence is at issue. That protection should acknowledge that a judgeship is a political position. It doesn’t matter whether the judge is chosen by voters in a competitive election (Illinois, for example) or selected in a so-called merit selection system (Iowa, for example). Each requires judge-candidates to participate in political machinations.

There are two ways to lessen the political consequences to judges of acting as champions of individual rights. One is the way it is done in the federal court system – give judges lifetime tenure. The advisability of lifetime tenure aside, asking citizens to give up their ability to choose or at least retain judges is unlikely to happen.

The second method is at the other end of the spectrum. Term limits. If they were limited to one 10-year term, it would be a lot easier for judges to make pro-individual or pro-minority decisions. Judges wouldn’t have to worry about how they would retain their robes in the light of a decision that may be unpopular with the majority of voters. The question would be moot because they couldn’t stand for retention.

The office of judge carries enormous power. In our society, in which individual liberty is at the top of the value scale, the highest use of that power is to vindicate those liberty interests. Term limits will free judges to use the power of their offices to insulate themselves from electoral punishment by a majority that might want to stomp on individual rights. That would make for real judicial independence.

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