It was a heck of a week for the judiciary in Illinois. The least talked-about of the three co-equal branches of government came under fire by the newly-elected head of the executive branch, Governor Bruce Rauner.
On April 7, as reported by several newspapers the next day, Rauner said he favors a merit-based judicial selection process and wants to set up a task force to study how judges are chosen in other states. He also made the following statements to the Daily Herald, a suburban Chicago newspaper:
I don’t trust the Supreme Court to be rational in their decisions. I think they’re activist judges who want to be legislators.
Asked by the newspaper if he believes the state’s high court is part of a “corrupt” system, Rauner said:
Yes, correct. Yes. Yes. We have a system where we elect our judges, and the trial lawyers who argue cases in front of those judges give campaign cash to those judges. It’s a corrupt system.
A backdrop to these comments is the fact that a 2013 pension reform bill signed by former Governor Pat Quinn that would cut benefits to state workers and retirees is pending before the Illinois Supreme Court. Rauner wants to cut benefits in order to relieve some of the state’s $105 billion government worker pension debt. He may believe that the Court will rule against the bill because last year they ruled in another case that the language in the state constitution holding pension benefits cannot ‘be diminished or impaired” means that retirees cannot be compelled to pay more for their state-subsidized health care.
On April 9, the President of the Illinois State Bar Association, Richard Felice, issued a letter and a statement of the ISBA explaining the electoral process and long-standing efforts in Illinois to promote merit selection of judges:
Americans of every possible political persuasion participate in judicial campaigns, and their ability to participate in those elections is cherished and protected by the courts and Constitution. Currently, the Code of Judicial Conduct governs the ethical conduct of judges that includes whether a judge should recuse or be disqualified from hearing a specific case.
As lawyers, we can appreciate the Governor’s interest in the justice system and the election of judges. It is a legitimate topic of debate. In fact, since the early 1980s, the Illinois State Bar Association has worked with political leaders on both sides of the aisle to promote merit selection and retention of judges and public financing of judicial elections. That makes it all the more disappointing that the Governor has launched an irresponsible attack without merit on the integrity of the entire judicial system. Instead, he should engage in constructive dialogue or propose legislation to work on these issues.
Meanwhile, Rauner admitted in a subsequent interview that he didn’t choose his words carefully enough.
I probably didn’t use words carefully enough. I believe our judicial system is full of conflicts of interest. And the Supreme Court is part of the judicial system. It’s not the Supreme Court per se, it’s the system.
My comments about the Supreme Court, one of the issues I raised is, you know, they’re opining on things that impact them, when they talk about pensions and health care and whatnot. I’m just troubled by the conflict. I don’t criticize them. They’re doing the best they can. They’re good people. I don’t criticize individual judges or a particular court. The system, I think, has conflicts.
On Sunday, April 13, other responses to Rauner’s initial comments from high profile lawyers representing lawyer groups were published. John D. Cooney, President of Illinois Trial Lawyers Association wrote a letter to the editor published in the Chicago Sun-Times:
That Rauner disparages our courts’ elected judges for upholding the most sacred principle of democracy, fidelity to the rule of law, is deeply troubling. American government was intentionally designed to require checks and balances when it comes to the crafting, passage, approval and judicial review of laws. We purposefully do not have a CEO in charge that makes all the decisions and expects his subordinates to carry them out or suffer the consequences. The stakes are simply too high to entrust the entirety of our government to the wisdom, or lack thereof, of one person.
Democracy permits all of our citizens to agree or disagree with the high court’s decisions. Its seven justices are men and women duly elected by their fellow Illinoisans (as was Rauner) and have long and distinguished careers. It is outrageous, irresponsible and anti-democratic for Rauner to smear them as dishonest for doing their duty to the constitutions and laws of the United States and Illinois. The last thing our state needs right now is a demagogue as its leader.
Thomas A. Demetrio of Corboy & Demetrio and past president of the Chicago Bar Association and Illinois Trial Lawyers Association said in a letter to the editor of the Chicago Tribune:
This from a man [Rauner] who boasted how he voted “no” for each of the 73 judges who were up for retention this past election, all of whom were rightfully retained.
While I don’t always agree with every decision the court renders, I do know that each of the seven justices who makes up our Supreme Court is competent and ethical. For our governor to unfairly and without basis disparage them is a testament to his true character.
I, too, at one time was in favor of merit selection–but not anymore, if it means loose cannons like our governor, will be the ones doing the selection. I would much prefer to rely on the people.
Finally, Dan Cotter, president of the Chicago Bar Association said in an April 13 letter to Governor Rauner:
Your comments last week deprecating the integrity and independence of the Illinois Supreme Court is corrosive politics at its worst and serves to undermine public confidence in Illinois’ entire judicial system.
It is unfair, illogical and politically dishonest to call the Illinois Supreme Court part of a “corrupt system.” As you well know, the Illinois constitution mandates judicial elections and the men and women who run for these offices establish campaign committees in full compliance with state and federal election laws and the Judicial code of conduct. It is the campaign committee and not the judge and/or judicial candidate that accepts contributions from citizens, corporations, trial lawyers, Political Action Committees, and others to help finance election costs….Undermining the Illinois Supreme Court and Illinois’ Judiciary is a step backward and counterproductive to moving our state forward in these difficult times.
The independence of the judiciary is a discussion that obviously needs to take place. Disagreement on this issue is nearly certain. And as I have written about before, we can be civil while disagreeing. In fact, disagreement is the precursor to dialogue that is the basis of the democratic process.
But such dialogue should take place respectfully and decidedly, based on facts. Name calling and personal invectives are not helpful to such discussion.
Exemplifying the highest ideals of professionalism on this topic, former U.S. Supreme Court Justice Sandra Day O’Connor has spent much of her “retirement” years advocating for civics education so our citizens are better informed, and for merit selection of judges.
Whatever your thoughts, these are serious issues that cut to the foundation of our system of government. Let’s be civil and productive about discussing them.