In highly political, richly funded contests for Illinois Supreme Court majority, pledges of impartiality stir skepticism – Chicago Tribune

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Ask any of the candidates running for the Illinois Supreme Court if politics will guide their rulings and you’ll get the same answer.

“My commitment is to be impartial and unbiased and to hear the entirety of cases,” said Lake County Judge Elizabeth Rochford, a Democrat.

“I have no political goals,” said her opponent, Mark Curran, an attorney who was formerly Lake County sheriff and the unsuccessful Republican challenger to U.S. Sen. Dick Durbin in 2020. “I don’t have anything like that. The job is to rule fairly and to look at facts and the law and apply them.”

Such pledges might be a tough sell in a race where politics are inescapable.

With two of the court’s seven seats up for grabs next month, Republicans have a chance to win a majority for the first time in more than half a century. That prospect became even more charged after the U.S. Supreme Court made the legality of abortion a matter for states to decide.

Money is pouring into the races, adding to a national trend that has seen judicial campaigns become an increasingly expensive battleground. The Brennan Center for Justice found that in the last election cycle, partisans sank a record $97 million into state Supreme Court races nationwide.

Douglas Keith, counsel at the center’s democracy program, said that amount will no doubt rise as state courts grapple with heavyweight issues. Despite candidates’ claims of independence, he said, research has shown that judges do indeed favor their contributors.

“No one is spending that much money to ensure an impartial judiciary,” he said.

The Democrats’ longtime dominance of the Supreme Court fell into jeopardy two years ago when, for the first time in Illinois history, a justice lost a retention vote.

Tom Kilbride, who was seeking a third 10-year term, drew ferocious opposition from business interests led by billionaire hedge fund manager Ken Griffin. They dumped millions into the campaign, and while that was nearly matched by the spending of trial lawyers, unions and the Illinois Democratic Party, Kilbride came up short of the 60% approval needed to keep his seat.

“The Democrats looked at that and said, ‘There’s trouble coming here,’” said Kent Redfield, professor emeritus of political science at the University of Illinois at Springfield. “They knew that was going to be an open seat in 2022, and you could end up with that being the fourth Republican seat.”

Democrats responded by banning judicial contributions that come from out of state or from groups that don’t disclose their donors, a move some interpreted as an attempt to kneecap Republican fundraising (a federal judge earlier this month ruled that the ban cannot be enforced).

Democratic officials also redrew the electoral map for the first time in 57 years; two Supreme Court districts are now concentrated in the Chicago suburbs, which have grown friendlier to Democrats. Officials said the redistricting was a response to population changes, but Redfield called it “a very partisan move.”

Michael J. Burke and Mary Kay O'Brien are facing off for an Illinois Supreme Court seat. Burke, the Republican candidate, is sitting on the Illinois Supreme Court after the court appointed him to fill a vacancy. The Democratic candidate, O'Brien, is an appellate court judge in the 3rd District and served as a member of the Illinois House of Representatives from 1997 to 2003, when she was appointed to the appellate court.

Michael J. Burke and Mary Kay O’Brien are facing off for an Illinois Supreme Court seat. Burke, the Republican candidate, is sitting on the Illinois Supreme Court after the court appointed him to fill a vacancy. The Democratic candidate, O’Brien, is an appellate court judge in the 3rd District and served as a member of the Illinois House of Representatives from 1997 to 2003, when she was appointed to the appellate court. (Burke campaign photo and Vincent D. Johnson/for the Chicago Tribune)

The new map meant Justice Michael Burke, an Elmhurst Republican appointed to the court’s 2nd District when Justice Bob Thomas retired in 2020, was moved into the 3rd District, which covers DuPage, Will, Kankakee, Grundy, Iroquois, LaSalle and Bureau counties.

Burke faces Appellate Court Justice Mary Kay O’Brien, a Democrat from Essex. The 2nd District, which covers Lake, McHenry, Kane, DeKalb and Kendall counties, features Curran against Rochford.

Ryan Tolley of Change Illinois, which favors independently drawn electoral maps, said while the new districts will likely favor Democrats, demographics aren’t the only thing that matter.

“At the end of the day, external election factors will come into play and no one can predict them,” he said.

One massive external factor arrived in June when the U.S. Supreme Court overturned Roe v. Wade. Rochford and O’Brien wouldn’t say how they’d rule in a hypothetical abortion case, but their campaigns strongly suggest where their sympathies lie.

In an ad slamming Curran as “the most pro-life candidate,” a female voice-over says Rochford “will protect our rights.” Two of O’Brien’s commercials note she is endorsed by pro-abortion rights organizations.

Meanwhile, a commercial produced by All for Justice, an independent expenditure group backed by unions and trial lawyers, claims that “Mark Curran and Michael Burke want to ban abortion in Illinois, even in cases of rape and incest.”

Burke’s campaign says that is false and has asked TV stations to stop running the ad. Though the justice appeared at an Illinois Right to Life banquet earlier this year, he cast that as an effort to connect with Republican primary voters, not an indication of how he would rule.

“I have never once spoken on that issue,” he said. “I have never taken a public position. When they say I have a position on this, they’re making it up. I will not tell anyone what my personal position is.”

Mark Curran, Republican candidate for the Illinois Supreme Court, center, talks with a supporter at a meet-and-greet held by the Women's Republican Club of Lake Forest-Lake Bluff at the Gorton Community Center in Lake Forest on Oct. 12, 2022.

Mark Curran, Republican candidate for the Illinois Supreme Court, center, talks with a supporter at a meet-and-greet held by the Women’s Republican Club of Lake Forest-Lake Bluff at the Gorton Community Center in Lake Forest on Oct. 12, 2022. (John J. Kim / Chicago Tribune)

Curran, who has been explicit about his views on abortion to the point of saying at a July political event that Planned Parenthood “is responsible for more Black children’s deaths than anything,” said he would not seek to rewrite the state’s statutes from the bench.

“These laws were passed by the General Assembly and they’re going to remain laws,” he said.

Terry Cosgrove of Personal PAC, which aims to elect pro-abortion rights candidates, said Burke and Curran’s assurances aren’t believable.

“(They) have been endorsed by the most radical anti-abortion organizations, individuals and wealthy donors in Illinois,” he said. “Putting both of these men on the Illinois Supreme Court will guarantee that women across the state and the Midwest will lose access to the most basic health care.”

The Republicans are taking aim at their opponents’ political ties. The Griffin-backed Citizens for Judicial Fairness has put out a commercial lambasting O’Brien and Rochford for their supposed allegiance to Mike Madigan, the former longtime speaker of the Illinois House who faces federal racketeering charges.

O’Brien, who was a state legislator from 1997 to 2003 before becoming a judge, said voters in her mostly Republican district rejected that claim during her political career. Rochford was appointed to her post by fellow Lake County judges, and her spokeswoman said any suggestion that the judge owes her career to Madigan is “a desperate, Hail Mary lie.”

Curran also points to Rochford’s campaign contributions to Chicago power broker Ald. Edward Burke, including a $1,500 donation recorded weeks after federal agents raided the alderman’s offices in 2018 (he has since been indicted on racketeering and bribery charges).

Rochford’s spokeswoman said that check had been written before the news broke, and that the contributions had been a way of honoring the judge’s late father James Rochford, a Chicago police superintendent who had a tradition of donating to Burke’s annual Christmas event. (Edward Burke and his wife, retiring Supreme Court Chief Justice Anne Burke, are not related to Justice Michael Burke.)

Rochford is highlighting Curran’s inexperience — he has never been a judge, and the Illinois State Bar Association rates him as “not recommended” — while underlining comments she says are evidence of his extremism. Among them are a 2013 letter, in which he wrote that same-sex marriage “is not in the best interest of society,” and Facebook posts echoing former President Donald Trump’s false claims about a stolen election.

Illinois Supreme Court candidate Judge Elizabeth Rochford accepts the endorsement of the Gun Violence Prevention Political Action Committee during a news conference at Bright Star Church in Chicago's Bronzeville neighborhood on Sept. 20, 2022.

Illinois Supreme Court candidate Judge Elizabeth Rochford accepts the endorsement of the Gun Violence Prevention Political Action Committee during a news conference at Bright Star Church in Chicago’s Bronzeville neighborhood on Sept. 20, 2022. (E. Jason Wambsgans / Chicago Tribune)

Curran, a Catholic, has also cast public policy in religious terms. After his son’s 2020 high school football season was postponed in response to the COVID crisis, he wrote on social media: “The devil is about fear and isolation. Does he own you? How much more of his childhood are we going to steal? Death will eventually come for everyone. Your soul will have an eternal destination.”

This year, in an interview on the political news show “Public Affairs,” he told host Jeff Berkowitz that God prompted him to run for the court after allowing him to see that Freemasons, members of a fraternal organization that has clashed with Catholicism, held sway over the judicial system in Lake County.

Curran walked back some of those comments in his interview with the Tribune. He said he believes many same-sex parents are doing a good job raising their children, and that his concerns were based in religious liberty. He added he didn’t write everything on his Facebook page, doesn’t think the election was rigged against Trump and doesn’t believe the Freemasons still control Lake County’s courts.

As for his faith, he said it is based in “natural law,” and that compels him to rule upon laws as they are, not how he might want them to be. The former Democrat said he is no lockstep partisan, and suggested some of his remarks had a political calculation.

“I ran for U.S. Senate,” he said. “Regardless of how I felt about it, how do you think it would have worked out if I just threw President Trump under the bus? It’s not going to be well-received.”

The Burke-O’Brien contest is also getting tough. Burke touts his experience as the only candidate to serve on the Supreme Court, and while he says ideology doesn’t guide his deliberations, his campaign underscores his endorsements by the Illinois Fraternal Order of Police and the Illinois Chamber of Commerce.

O’Brien has criticized Burke for describing himself as a legal “textualist,” but he said his conception of the term differs from that of U.S. Supreme Court justices who aim to discern the intent of America’s long-dead founders.

“(Illinois’) most recent constitution took place in the 1970s,” he said. “We have transcripts of all the debates, so we know what those folks were thinking. That makes it a lot easier than the U.S. Constitution.”

O’Brien said her varied career as a private attorney, legislator and judge gives her unique insight into how laws are made and applied. And though her campaign has raised five times more money than Burke’s, including six-figure contributions from teachers unions and Gov. J.B. Pritzker, she said that won’t buy influence.

“What people like about me is that whether they like the decision I give them or not, they at least know they’ve been heard and they’re going to get a fair shake,” she said. “That’s all I would ever tell anyone I can guarantee.”

Chicago Tribune’s Jeremy Gorner contributed.

jkeilman@chicagotribune.com

Twitter @JohnKeilman

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October 24, 2022 at 06:20AM

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