Criminal Appeals Court Judge Pam Baschab went for votes the old-fashioned way. When she ran for chief justice of the Alabama Supreme Court last spring, she walked from one end of the state to the other. Judges in Alabama, as in most states, stand for election. So Baschab, just like a nonjudicial candidate, hit the road and met voters. The walk, in and of itself, may not seem unusual in a judicial race. But Baschab's walk wasn't just for votes. "It was a pilgrimage against the money,'' she says. "It was a cry out to the public to let the public know, the best way I could, without selling out, that justice is for sale in Alabama." DuPage County Circuit Judge Bonnie M. Wheaton had a similar protest in mind when she ran for the Illinois Supreme Court last spring. She spent $1.48 million of her own money on her campaign, she says, to highlight the hundreds of thousands of dollars in contributions her opponents were taking. "Why would people give such large amounts of money if there was nothing that they wanted in return?'' says the judge's campaign manager, Grace McKnight. "That's the point she tried to make by using her own funds." The judges' messages resonated

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Still, their efforts highlight what reformers argue is the single greatest threat to the independence of the courts: Judicial candidates have become more like other political candidates. They raise increasing amounts of money -- much of it from lawyers, businesses and other special interests -- to wage television ad campaigns, some of which engage in public debate on controversial issues.

There is no proving, of course, that campaign contributions to judges, or other political candidates for that matter, color their decisions while in office. And reasonable people within the legal community can and do disagree about whether the bench is tarnished when some justices take to the airwaves in the heat of a campaign to argue policy questions. But on one point there is plenty of evidence: There has been a decline in public respect for the judiciary that stems from this increasingly political election process.

There's no question, either, that judicial campaigns are getting more expensive. This year, candidates for the bench in several states broke previous spending records. In Ohio, as much as $12 million is expected to be spent in the battle for a single Supreme Court seat. Candidates in that state are limited by a high court rule on how much they can spend, but the rule doesn't restrict spending by political action committees.

The spending hasn't gotten that high in Illinois. Still, records were broken this year when three candidates for the Illinois Supreme Court spent more than $1 million each, and a fourth spent almost that much. The $580,000 spent in 1992 by Chief Justice Moses W. Harrison II is believed to be the previous record.

In this state, there are no caps on contributions or expenditures for judicial or nonjudicial candidates, but those who raise or spend more than $3,000 in a one-year period are required to file semiannual campaign finance disclosure statements with the State Board of Elections.

According to those records, 20 winning candidates in the Cook County Circuit Court races spent more than $600,000 this year on 19 primary races. (Both parties fielded candidates in only one of the races.)

In a four-way Democratic race for one countywide vacancy, candidates spent a combined total of more than $460,000, which is believed to be a record amount spent on a circuit court race. Chicago lawyer Joyce M. Murphy won the race. Marvin Leavitt, who came in second, spent nearly $284,000.

The increasing role of money in judicial races has garnered the most attention from the media and numerous task forces studying judicial election reform, but that's not the only trend in judicial campaigning. Candidates for the bench in some jurisdictions also are raising issues, even taking sides on such questions as abortion, a move many in the legal community believe could compromise objectivity on the bench. Indeed, in states where races have traditionally been nonpartisan, political parties have begun assuming a greater role in getting judges elected, helping to fuel the debate on judicial independence.

And that brings us back to the Baschab and Wheaton races. Those campaigns brought national attention not only to concerns about campaign cash but to concerns about how judicial races are run. Issues were raised in those races that, some argue, were designed specifically to appeal to conservative voters. Baschab lost the June primary to Etowah County Circuit Judge Roy Moore, a small-town Alabama jurist who gained national notoriety by refusing to remove the Ten Commandments from the wall of his courtroom. Wheaton lost to 2nd District Appellate Justice Bob Thomas, a former Chicago Bears placekicker who handed out fliers touting his anti-abortion stance.

"Clearly, when somebody comes out and says, 'I'm against abortion' and 'I'm gonna put the Ten Commandments in my courtroom,' you know those are things that a judge shouldn't do and [those positions] shouldn't affect what a judge is going to do in any particular case," says Abner Mikva, a former federal judge who co-chairs an American Bar Association task force studying ways to improve judicial selection. Further, Mikva worries about appeals to conservative voters. "I have no doubt in my mind that many of the state court races, while they've been decided in part by big money, they've also been decided by the fact that the more conservative candidates tend to get this core of ideological supporters that are much more involved in the judicial races than the average citizen normally would be."

For his part, Thomas downplays the significance of his anti-abortion message, saying while the issue might have appealed to some voters in his district, it was hardly the winning factor in his race. "I would suspect that if there were people that felt the same way I do, that they probably voted for me,'' says Thomas. "But I really feel that, in looking at the polls, there are people on the other side of the issue who voted for me as well, who thought I was fair-minded and a man of character and not afraid to say where he stood on an issue of core values."

Supreme Court Justice S. Louis Rathje, who also lost to Thomas in his race to keep the seat he was appointed to, disagrees. He says Thomas knew exactly what he was doing and that he broke ethics rules to win votes. "It was my belief that he, in essence, stepped over the bounds of Rule 67 in an attempt to garner a certain segment of the Republican voters," Rathje says. Illinois Supreme Court Rule 67 governs political activity of judges and judicial candidates. Thomas says

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Heiple's interpretation was that the rule was adopted with the understanding that Illinois has an elective judiciary and that judges must involve themselves in political matters. "Realistically speaking, it is not enough for the judge or candidate to merely give name, rank and serial number as though he were a prisoner of war," Heiple wrote. "Rather, the public has a right to know the candidate's core beliefs on matters of deep conviction and principle. While the candidate is not required to disclose these beliefs, he should neither be deterred nor penalized for doing so."

No one disagrees that getting a candidate's message out costs money. And television advertising, the most expensive medium, is the medium of choice in highly contested races. This year, candidates for Illinois' high court spent most of their money on television, other media and political consultants. "To have any significant impact in the metropolitan Chicagoland area, you need to expend a minimum of $300,000 to $350,000 over a period of two and half weeks," says Thom M. Serafin, a Chicago-based media consultant who for a time worked on Rathje's campaign. "That's a minimum."

That is not encouraging news to reformers. The judiciary, they argue, is supposed to provide a balance to the popularly elected branches of government. Forcing them to raise money on the stump, they say, necessarily erodes public confidence in judicial rulings.

"Money always leads to a problem, an appearance problem," says Thomas R. Phillips, chief justice of the Supreme Court in Texas, where million-dollar high court races have been the norm for nearly two decades. At the very least, he argues, it leaves the door open for people who lose lawsuits to complain.

To the extent possible, reformers would insulate judges from politics altogether. Proponents of the elective system counter that any alternative, including "merit" selection, or appointment of judges, would be no less political. At least with elections, that line of reasoning goes, candidates can market their credentials to the public. "It's a free society, and people can run and present their credentials," says Illinois' Chief Justice Harrison. "However, that doesn't mean that it's going to be a lot less political if we have some other group or person deciding who the judges are going to be. I would rather have it with the people."

Still, pressure for some judicial campaign reform is building. This coming December, the chief justices of the 15 largest states with judicial elections are expected to meet in Chicago to discuss the issue. The meeting, which is being coordinated by the National Center for State Courts, will include representatives of California, Florida, Georgia, Illinois, Indiana, Michigan, Missouri, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Washington and Wisconsin.

In the meantime, the Cook County Judicial Advisory Council, a body that studies problems in the judicial system and makes recommendations for change, announced in August that it had formed a special task force to provide voluntary guidelines for judicial candidates. The task force, formed to help candidates run professional and ethical campaigns, also plans to establish a hot line for candidates with questions.

An Illinois State Bar Association committee also is looking at the behavior of judicial candidates. Three other committees, funded by the Chicago-based Joyce Foundation, were launched last May to examine whether campaign contributions to judges affect the judicial system and whether the judicial campaign funding system can be reformed.

Those committees were formed by the American Bar Association, the Chicago Council of Lawyers and the Helena, Mont.-based National Institute on Money in State Politics to examine judicial races in Illinois and surrounding states.

Thus far, moves toward an appointed judiciary have gone nowhere in the Illinois legislature. At least three proposed constitutional amendments to provide for some form of merit selection have been introduced in the House in the last two years, but they haven't budged.

Throughout the country, some legislatures have blocked moves toward merit selection or alternative plans for an appointive bench, reform advocates contend, because party leaders believe they have more control over an elective system.

"In states that have strong party traditions, and Illinois is one, [passing merit selection] is probably harder to do," says William T. Pound, executive director of the National Conference of State Legislatures. "The pieces are linked, if I can say, through the party. It's not only legislators, but [also] local officials, county officials, judicial officials ... they are all part of a system."

Whether campaign contributions to judges can affect judicial decisions seems to be the $64,000 Question for most groups studying possible reforms. Judges who have taken large contributions, and the contributors who gave them, deny any link between money and court rulings. Reformers, on the other hand, say the point isn't so much whether contributions buy influence, but whether politicized judicial races and the appearance of impropriety have eroded public confidence in the bench.

Several recent polls found they do.

• A 1999 survey by the National Center for State Courts found that 78 percent of the respondents agreed that "elected judges are influenced by having to raise campaign funds."

• A 1999 survey conducted on behalf of the Texas Supreme Court found that 48 percent of that state's judges and 79 percent of its lawyers believed that campaign contributions significantly influenced courtroom decisions.

• A 1998 report by a special committee of the Pennsylvania Supreme Court found that

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• A 1995 report by a special committee of the Ohio Supreme Court found nine out of 10 Ohioans believed that judicial decisions were affected by political contributions.

Ironically, when states began to adopt elective systems for the judiciary in the early 1800s, it was because reformers believed electing judges would inspire public trust. If bad judges were elected, they argued, the public would have recourse at the ballot box. But soon, judicial candidates were taking campaign contributions from lawyers and litigants, raising questions about their impartiality. The American Judicature Society suggested merit selection in 1913, shortly after that nonpartisan group was formed.

Today, according to the judicature society, judges in 38 states stand for election at some level of the court system. Thirteen of those states have a partisan system, the system that has attracted the most attention. Another 18 hold officially nonpartisan elections, though political parties endorse in those races. Other states use a form of merit selection or other appointive systems. Several states fall into more than one category because the way judges for different levels of the court system are selected varies.

Illinois uses a modified electoral system. Circuit, appellate and Supreme Court candidates in this state run in contested, partisan elections for their first terms. Judges who want a second or subsequent term run for retention, essentially in a race against themselves. Meanwhile, associate judges, who serve at the circuit court level, are chosen by the elected circuit court judges. The Supreme Court makes interim appointments at all three levels of the court system to fill vacancies.

The retention election, a device designed to satisfy voters' desire to play a role in selection without risking improper political influence on a sitting judge, differs most from nonjudicial elections. Candidates for retention run unopposed on the ballot and voters simply choose whether to retain them. Several states use that system. Meanwhile, 17 states require some judges who are initially appointed to the bench by a nominating commission to run for retention.

Though retention races are officially uncontested, in recent years some of those races have attracted big money. Three California Supreme Court justices were ousted in 1986 after grass-roots organizations spent about $7 million opposing retention. And in Illinois this year, Supreme Court Justice Charles E. Freeman may face an anti-retention campaign following controversial judicial appointments he made in Cook County. He has hired a public relations firm to advise him.

Efforts to reform the judicial election system rest on the assumption that, though judges run for office like other politicians, they should be held to a higher standard. They are not democratic representatives like legislators and governors. Judges are supposed to represent the rule of law, reformers say, and not the will of the majority.

A 1998 American Bar Association task force made several recommendations for change, including expanding judicial candidate disclosure requirements. Though effective campaign disclosure has been federal law since 1971, the task force wrote that judicial candidates and their campaign committees should be required to take additional steps to ensure public access to the information.

Some observers, meanwhile, argue judicial disciplinary agencies throughout the country have become more active in charging and prosecuting judges who stumble ethically on the campaign trail. Cynthia Gray, director of the Center for Judicial Conduct Organizations at the judicature society, notes that some states have taken steps to prevent unfair campaign tactics and to respond to complaints about judicial campaigns.

Illinois' Code of Judicial Conduct prohibits judges from articulating their views on issues that might come before them. Thomas, the Illinois candidate endorsed by anti-abortion groups, was not accused by the state's Judicial Inquiry Board of violating that code in connection with his primary campaign.

The question remaining then is whether, under an elective system, judicial candidates should be expected to stretch and, in some cases, skirt their unique campaign rules to garner certain votes. Or should judicial candidates be expected to rise to a higher standard?

"We hope that aspiring judicial candidates would operate well above the bottom line of acceptable conduct," says Robert P. Cummins, former chair of the inquiry board, now a partner with the Chicago firm of Cummins & Cronin LLC. "So when you're arguing about how many angels are on the head of a pin, over whether one can or can't articulate a view of a particular subject, then I think we're in trouble."

But we get what we pay for. And so long as judges are elected, realists say, candidates for the bench will do what they have to do to win.

Aaron Chambers is a Statehouse reporter for the Chicago Daily Law Bulletin.

This story and the two that follow were partially funded by a grant from the Joyce Foundation through The Sunshine Project of the University of Illinois at Springfield. Joyce and the project has funded other articles about campaign finance in Illinois Issues, including "The four tops," in November 1996 and "Cash vs. citizens," in October 1998.

17 October 2000 Illinois Issues