Rewrite the rules on judge’s recusal

• Reprints

Updated: August 4, 2011 4:20PM

Good lawyers know the law.

Better lawyers know the judge.

Great lawyers know whose campaign contributions put the judge on the bench.

That’s the heart of the problem in any state, including Illinois, where judges are elected. How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

In 2004, $9.3 million was spent on the Downstate Supreme Court race between Lloyd Karmeier and Gordon Maag, breaking the record for spending on a Supreme Court race in any state. (Karmeier won.) Two years later, the record was broken for spending in an Illinois appeals court race.

As judges collect all that money, the only way they can protect the integrity of the courts is to refuse to sit in judgment if one of the parties before them is a big donor. They must recuse themselves, a legal term that means they step aside and let the remaining justices or a replacement judge hear the case.

In New York, for example, a judge is required to recuse himself or herself if a party to the case has donated more than $2,000. In Wisconsin, the limit is $1,000. In Illinois, unfortunately, recusal is entirely up to a judge, a standard so weak it’s no standard at all.

Karmeier, for example, felt free to rule in favor of one of his biggest campaign contributors, State Farm Mutual Automobile Insurance Co., in a case that had been pending during the election campaign. Karmeier may well have felt his legal reasoning was sound, but the perception of justice for sale is unavoidable.

Compare Karmeier’s decision with that of U.S. Supreme Court Justice Stephen Breyer, who was attending a law convocation in Washington a few years ago when the talk turned to a blockbuster of a case then in the news that was sure to work its way up to the high court. Breyer quietly slipped out of the conference, almost unnoticed, demonstrating that essential judicial trait — knowing when to leave the room.

A strong recusal policy actually would make life easier for judges, whose campaigns can be hijacked by outside money paying for ads that paint opposing judges as coddlers of criminals when the real issue may be, say, tort reform.

But are big donors to judicial races really trying to buy influence, or are they just high-minded folks looking to put the best people on the bench?

Consider the results of a 1970s experiment in some Florida jurisdictions in which campaign contributions were funneled through a system that kept the donors’ identities secret. The cash flow instantly dried up.

We’d like to see a merit system for appointing judges or public financing of judicial races, in part because voters don’t always understand the arcane legal matters judges rule on. A judge who is excoriated for ordering a new trial in a highly publicized criminal case might well have made the correct decision.

Gov. Quinn has set up a task force to look at public financing of campaigns in general, but that expensive reform is not likely to be embraced in an era of tight budgets. And persuading voters to support the merit selection of judges might require a long public education campaign. But the Illinois Supreme Court is free to rewrite the rules on recusal at any time and should do so.