The demise of medical malpractice reform and the upcoming battle over legislative redistricting could factor into a key Illinois Supreme Court retention race in November.
Even though big money and media will follow the races for governor and U.S. senator, Supreme Court Justice Thomas Kilbride could be vulnerable as he seeks a second 10-year term on the state’s high court.
Kilbride, a Democrat elected from the state’s 3rd Judicial District, needs 60 percent of the vote from an electorate that could swing either Democrat or Republican.
As one of four justices who voted in February to overturn the state’s medical malpractice law that capped pain and suffering damages in medical negligence lawsuits, Kilbride could be a target for ouster.
While a challenge to Kilbride’s retention would be difficult, it should be expected, said Ed Murnane, president of the Illinois Civil Justice League (ICJL).
“The ruling on medical malpractice stirred up a lot of attention from the medical community,” Murnane said. “There is likely to be aggressive effort to remove him.”
The Supreme Court’s caps decision — which held that the Illinois General Assembly exceeded its constitutional power when it enacted the 2005 law — followed party lines. Four Democratic justices voted to overturn, two Republican justices voted to uphold and one Republican justice abstained.
The bill passed in a Democratically-controlled state legislature and was signed into law by then Gov. Rod Blagojevich. The bi-partisan legislation established $500,000 caps on non-economic damages in malpractice cases against doctors and $1 million caps against hospitals.
It came to be through intense lobbying efforts from the state’s medical community and insurers, which drove passage of the bill. They claimed doctors — particularly neurosurgeons and obstetricians — had been driven out of Illinois by soaring liability insurance rates. They now are incensed by the court’s decision.
Murnane said that to change the outcome of laws putting caps on medical malpractice awards there must be “different judicial eyes looking at it, different judges.”
In the meantime, a Republican state senator has introduced a constitutional amendment to keep the Illinois Supreme Court from overturning future medical malpractice reform laws.
Besides the medical malpractice decision, control of the court is important because of state legislative redistricting, which could come before the court if the outcome is challenged. It typically is because legislative maps, which are redrawn every 10 years post- census to reflect population change, tend to favor the political party in chargeof the legislature.
Kilbride is one of four justices to face retention in the fall.
Although the justices don’t declare their candidacies until May, they all are expected to seek retention. In past practice, justices who plan to end their careers on the state Supreme Court seek retention, then retire shortly thereafter, according Murnane, who serves as chairman of the American Tort Reform Association.
Their appointed replacements then have an advantage come election time.
Three of the four justices with expiring terms this year are in what political observers consider to be safe districts.
Democrats Chief Justice Thomas Fitzgerald and Justice Charles Freeman are elected from the state’s 1st District, which encompasses Cook County, where elections are held in the iron grip of the Democratic Party.
“If party affiliation means something, Cook County judges are the safest,” Murnane said.
Second District Justice Robert Thomas, a moderate Republican, hails from DuPage County, which — with nearby Lake County – lies in a GOP stronghold. That, his abstention in the medical malpractice case, plus his status as a former Chicago Bear and kicker for the University of Notre Dame puts him in good stead to win retention, according to Murnane.
But, Kilbride serves in a district that stretches across the state from his hometown of Rock Island to Peoria to the far eastern reaches of Will County. The 3rd Judicial District contains a mix of Democratic and Republican congressional districts and could go either way. Kilbride’s predecessor, James Heiple, was a Republican.
“It’s a district that’s far more competitive than some,” said Cynthia Canary, executive director of the Illinois Campaign for Political Reform (ICPR).
Canary’s organization was established by the late Sen. Paul Simon (D) to conduct research, promote civic participation, address the role of money in politics and to encourage accountability in government.
“Retention races are unusual because voters are asked should we retain this person,” Canary said. “There is no opponent. There are times when various groups have in the past come in and made case for why voters shouldn’t retain someone. But it’s much harder to do in a retention contest. It’s not ‘Candidate A’ against ‘Candidate B’.”
Without an opposing candidate there is no central figure to head a campaign, to raise money or for voters to identify with, she said.
Plus, most of the voting public isn’t well informed “about how judges have performed on the bench,” Canary said.
“There have been organized efforts to identify judges who are the poorest performers and make sure they aren’t retained,” she said. “But they almost always are.”
Paul Green, director of Roosevelt University’s School of Policy Studies, said it’s almost impossible to deny a judge retention.
“They usually get 75 to 80 percent (of the vote) for retention,” Green said. “No one to my best knowledge hasn’t been retained.”
In case a justice is not retained in November, the Supreme Court would appoint a replacement until the 2012 general election when the seat would be decided in an open contest.
Efforts to stop Kilbride’s retention could be usurped by what is expected to be an intense fight for the governor and senate seats, voter indifference and money woes, Green said.
He said it is very difficult to garner the necessary amount of interest or money to oppose or support a candidate whose name is at the bottom of the ballot-where judicial races are situated, Green said.
“Republicans may have a concerted effort to deny him retention but it’s tough to drive anger down to the level of a Supreme Court judge,” he said. “There’s a recession, and if there is money, the governor’s race and the senate race will eat up most of it.
“They’re two expensive, national races,” Green said. “There won’t be enough money to work to oust a judge. There’s a limited amount of funds in troubled times.”
“It’s a very hard economic time,” she said. “Choices will have to be made in terms of campaign dollars and independent expenditure dollars and where they go. There is a finite amount of money.”
Murnane agrees the two parties have to contend with the higher profile races, but the justices are important because their terms are for 10 years.
“We will be involved, but we’re also involved in other races,” Murnane said.
“There may not be the same kind of activity as governor or senator, but you certainly want to keep Democrats in judicial offices if you’re a Democrat and Republicans want to have and keep Republicans.”
Steve Brown, Illinois Democratic Party spokesman, said if “one of the smear groups go after him (Kilbride) with a million dollar campaign, I’m sure the party would step up.”
But the GOP and its supporters will have their hands full supporting their gubernatorial and senate candidates, he said.
“I don’t know that there will be enough resources to fight against Kilbride,” Brown said. “He has an excellent record so it would be hard to mount a case against him.”
Although Kilbride’s campaign fund is currently empty, it would fill quickly if his retention is challenged, according to Murnane.
“He’ll have all the money he needs,” Murnane said. “He doesn’t need the money right now, but when he does he’ll have what he needs. I’d say it will be in the millions.”
Trial lawyers donated heavily to Kilbride’s 2000 campaign and are the beneficiaries of the high court’s medical malpractice decision.
Murnane said, again, trial lawyers would be among those who cough up money for Kilbride’s retention if need be.
“They’re coughing right now,” Murnane said. “They’re having coughing fits…. It will be an interesting election.”