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For Republicans, Kilbride race about more than court decisions

By Andrea Holecek | Oct 13, 2010


SPRINGFIELD, Ill. (Legal Newsline) - As voting traditions go in Illinois, supreme court justices seeking retention always win.

But for Illinois Supreme Court Justice Thomas Kilbride, victory is not assured in next month's election.

The Democrat from Rock Island must get at least 60 percent voter approval in the state's 3rd Judicial District -- a sometimes Republican-leaning district -- to be retained to a second 10-year term.

Kilbride, one of four justices who voted in February to overturn the state's medical malpractice law, is the only one among those jurists facing voters who may hold him to account for that decision.

After the 4-2 court decision, which knocked down a 2005 state law that capped non-economic "pain and suffering" damages against hospitals and doctors, trial lawyers cheered. But the decision also made Kilbride a prime election target for the medical and business communities.

The only other justice up for retention who voted as Kilbride did is Justice Charles Freeman, who is elected from the state's 1st Judicial District. His district encompasses Cook County -- a Democratic stronghold -- and he faces no organized opposition.

In September, Kilbride was unanimously elected by his fellow jurists to serve as chief justice beginning Oct. 26, following the announced retirement of Chief Justice Thomas Fitzgerald.

And while Kilbride enjoys broad-ranging support -- he's been endorsed by former Republican Gov. Jim Thompson, the National Rifle Association and unions as well -- he also is in the crosshairs of the pro-business Illinois Civil Justice League (ICJL).

Ed Murnane, president of the ICJL, is leading an effort to derail Kilbride's retention.

"I would say he's the most hostile of all the justices -- Democrat or Republican -- to the business and medical communities in Illinois," Murnane said. "He has been a very staunch ally of personal injury lawyers. He's the most in support of expanding liability lawsuits."

David Morrison, deputy director for the Illinois Campaign for Political Reform, said Kilbride's actual record as a supreme court justice doesn't matter to those trying to unseat him.

Currently, Democrats control all the people involved with redistricting the state's House and Senate districts, he said.

The political process of redistricting begins after the election.

"Simply looking at the political nature of the court, it's four-to-three for the Democrats," Morrison said. "If the Republicans want to take over the majority, they've got to take out Kilbride. For that fact alone, his jurisprudence won't matter."

As for the battle ensuing in the 3rd Judicial District, the ICJL's political action committee, JUSTPAC, is urging voters to "fight back against this liberal Democrat judge."

Kilbride's opposition to medical liability reform is just one of many reasons why his retention is being challenged, Murnane said.

"He has a terrible record on issues involving job creation in Illinois," he said. "In fact, on 21 cases that would benefit employers and help create jobs in Illinois, he voted against the employers and against new jobs 21 times."

Scorching, controversial ads paid for by JUSTPAC also attack Kilbride's record involving crime and criminals.

JUSTPAC, as well as another anti-retention PAC, "Vote No Kilbride," are taking in large contributions from likely allies.

While full details on how much money is pouring into both sides of the retention issue may not be available until next week, campaign finance disclosure records currently available show that recently the American Tort Reform Association contributed $13,920 and a group called Republican Renaissance gave $10,000 to JUSTPAC.

On the flip side, Kilbride's campaign is also taking in contributions from likely supporters. Since early October, Kilbride's campaign has taken in at least $39,750 -- half of that from the Illinois Pipe Trades political action committee.

But a real indication that big money is pouring into the campaign was revealed in a pre-election report submitted before deadline by the Illinois Federation of Teachers. It reports having given Kilbride two donations in August and September totaling $250,000.

In his first bid for the Supreme Court, Kilbride raised more than $600,000, most of which came from unions and state Democrat Party organizations.

Academics taking the high-road approach to the election contend the retention of Illinois justices should be based on the sum of their high-court records, not decisions on individual cases, political labels or party affiliation.

Keith Beyler, professor at the Southern Illinois University School of Law, describes Kilbride as a "moderate with liberal leanings."

"To me, he's there with other members of the court and the court is pretty much down the middle," he said.

Beyler, who serves as liaison to the Illinois Supreme Court's rules committee, said there is no one on the court who is an all-out liberal or conservative.

"Occasionally you see in his opinions that Kilbride's a little bit toward the liberal end of the middle of the spectrum. But I would not describe him as (U.S. Supreme Court) Justice Douglas on one end or (Clarence) Thomas at the other end."

John Marshall Law School Professor Ann Lousin said she doesn't know anything in Justice Kilbride's record "that would indicate he was one way or another."

"I don't know if he's a passionate liberal, a passionate moderate or anything else," she said.

Lousin, who authored a book "The Illinois Constitution," said politics rarely plays a part in state high court decisions.

"It plays less of a part than people think," she said. "There are actually very few cases heard by the Illinois Supreme Court that are partisan. Maybe redistricting, but other than that maybe one to two a year. ....It seems to me that they (justices) are influenced by their background far more than whether they're Democrat or Republican."

Terry Murphy, executive director of the Chicago Bar Association, said although he hasn't followed all of Kilbride's court decisions, he knows him "to be a very involved in legal affairs and activities, a well regarded justice, very thoughtful, and very highly respected."

Murphy said he does not know if it's fair to label Illinois Supreme Court justices as liberal, moderate, conservative or anything else.

"I'm not sure they are classified the same way as politicians," he said. "The major theme should be if they're following the law. And they are doing their best to follow the law. It's easy to put a moniker on someone, but I question whether those monikers are really fair. You need to put everything in context of what issues are before the court."

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