The Politicization of American Courts

Political attack ads are commonplace this time of year. Though we’re accustomed to seeing them from mayoral and legislative candidates, there are a rising number of judges taking to the airwaves as well. These judicial campaigns seem to resemble the other partisan campaigns a little more each year -- and that is troublesome.

More and more judges are being slammed in political ads, turning what is supposed to be an impartial position into one just as laced with political overtones and just as tainted with special interest funding as any other political office. And that raises concerns about the legitimacy of the criminal justice system and how this increased politicalization of the judiciary may affect the fairness of our courts.

No better example of the increased politicization exists right now than the case of Illinois Supreme Court Justice Thomas L. Kilbrade. Kilbrade is up for retention next week as his first decade in the judiciary is expiring. Attack ads grossly exaggerating the justice’s rulings are all over the radio and television there, characterizing Kilbrade as being soft on crime and more or less a felon-friendly judge, suggesting he has “sided” again and again with pedophiles and rapists. This despite experts maintaining that all of Kilbrade’s rulings were according to law and not according to the nature of the crime.

Who’s behind this campaign against the judge? An organization that doesn’t like the way Kilbrade has ruled in favor of patients and claimants in malpractice and negligent civil cases. The head of the Illinois Civil Justice League has outright stated that their goal is to remove Kilbrade from the bench and that they will do whatever it takes to accomplish this goal. While their ads may not be illegal, they certainly seem unethical. These actions have brought out judges, prosecutors, and legal experts (from varied political backgrounds) who all speak to the misleading nature of the ads and go so far as to call the campaign “appalling."

Ninety percent of court business in the U.S. is done within the state court systems. Approximately nine out of 10 states use some sort of election system when choosing the judges for their courts. One of the basic tenets of the judiciary is to remain unbiased and impartial. But one has to wonder if the very democratic nature of their elections undermines this call for fairness.

In Illinois, the Supreme Court bench is held by four Democrats and three Republicans. Kilbride’s district is seen as a swing district and this is largely believed to be why his campaign is getting so much attention -- that and the fact that he sides with negligence and malpractice claimants. The four Democratic justices ruled against a cap on punitive damages against corporations, and when you mess with big business, they fight back with big money -- with millions of dollars already dumped into keeping Kilbride from getting his retention.

While most state courts are determined by the voting public and often by who has more money to put into a campaign, federal courts are far from perfect too. Indeed, an article in the Georgetown Law Journal points out that often courts, rather than acting as a check on majority power, actually “function as arenas for extending, legitimizing, harmonizing, or protecting the policy agenda of political elites or groups within the dominant governing coalition.”

People like the way being “tough on crime” sounds and Kilbride’s opponents in Illinois are playing off of this. But people are starting to wake up, realizing that being tough on all crime, all the time, costs billions and serves to take many people who aren’t violent out of their communities and away from their families.

As Radley Balko with Reason magazine said this week, maybe the answer is less democracy in the judiciary. If we’re to believe what we see on television and what we hear from lawmakers and special interest groups alike, we would be very frightened of the world outside our doors and would most likely put judges on the bench that would lock up the “bad guys” indefinitely. While putting the subjects of our irrational fears behind bars may feel better on some emotional level, sound logic and research alike show this isn’t always the best method.

The judiciary, whether at a local, state, or federal level, is there to interpret the laws and to see that they are applied in a manner that respects the U.S. Constitution and individual rights. They should not be political figures, but should instead act as unbiased mediators between individuals and the government, with the law as their guide point. Politicizing the judiciary even further can only lead to rulings that pervert the true spirit of the law.

Photo Credit: Brian Turner