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Last August, when I was installed as NACDL’s 52nd president, it was clear that the landscape in which we practice as criminal defense lawyers had changed dramatically over the course of NACDL’s half century. During my inaugural remarks, I focused on the many challenges and opportunities NACDL faces to shape public policy and safeguard liberty.1 It is becoming increasingly clear, however, that a most pernicious and dangerous threat is the corrosive effect of judicial elections and their destructive influence on the independence of the judiciary. We see compelling evidence of this when judicial candidates are attacked, and often defeated, because of their fidelity to the core constitutional principles that are the bedrock of the criminal justice system. Although this trend is evident in some of the highly publicized state supreme court races, these attacks can be even more devastating in local judicial races. When these attacks are fueled by the money now pouring into judicial elections, they create an unfair environment for the judges whose decisions shape our clients’ lives.
To ensure that NACDL is out front addressing this challenge, I created a Task Force on Judicial Independence to track and follow elections in which unwarranted attacks threaten judicial independence. During the 2010 elections, it quickly became apparent that this problem is far more extensive than previously believed. NACDL received numerous reports of attacks on judicial candidates for being too “soft on crime” and, worse, for the simple fact of having formerly served as criminal defense lawyers.
Beyond the content of the attacks, what was most shocking was the amount of money being spent during judicial elections due in large part to last year’s U.S. Supreme Court decision in Citizens United v. Federal Election Commission.2 For example, in Illinois, where I began my legal career, Illinois Supreme Court Justice Thomas Kilbride’s race brought in more than $3 million.3 Moreover, Justice Kilbride was forced to fend off attacks claiming he often “sided with violent felons” over law enforcement and victims.4 Justice Kilbride retained his seat,5 but if there is one lesson that can be taken away from the race, it is that these types of attacks are all too common.
Wisconsin is a state that has become a breeding ground for highly controversial judicial elections and attacks often divided by ideological lines. Just this spring, an estimated $4.5 million was spent by special interest groups during the Wisconsin Supreme Court race between Justice David Prosser and Joanne Kloppenburg.6 And in a local race for Waukesha County Circuit Court, Judge Kathleen Stilling and her opponent Lloyd Carter each spent over $72,000, not including money to fund TV advertising near the end of the race.7 And, as we all know, for the bulk of our clients it is the quality of justice in the lower courts that is our greatest concern.
What transpired at the end of the Stilling-Carter race is the quintessential example of the judicial election process at its worst. The central issue veered from which candidate would most fairly and justly uphold the rule of law to the issue of whether a candidate’s background as a criminal defense lawyer is a disqualifying factor. While candidate Lloyd Carter spent over 20 years as a prosecutor, Judge Kathleen Stilling spent part of her career as a criminal defense lawyer, and the supposed significance of this difference became one of the hallmarks of the race.8
According to Laurel Walker of the Journal Sentinel, on March 10th at a candidate forum, Lloyd Carter attacked Judge Stilling for her past experience as a criminal defense lawyer:
I’ve worked for the citizens of Waukesha County for over 20 years prosecuting criminals, putting bad guys behind bars, taking criminals off the street who are dangerous to this community. … My opponent, on the other hand, in her career has done the opposite. She’s worked as a criminal defense attorney. There is nothing wrong with being a criminal defense attorney. They are a cog in the wheel of the criminal justice system. But I’ve operated under a different set of rules, a different set of ethical rules to seek justice.
Judge Stilling responded:
Excuse me, but I am not a cog in the wheel of the justice system, nor was I ever. As a judge I am justice right now, and I’m doing a really good job of it. But as a lawyer, I defended the Constitution for almost 30 years. You know, criminal defense lawyers are so indispensable to the system of justice that the founders of this country made the right to counsel a constitutional right. And if you respect the Constitution as I do, then you respect what criminal defense lawyers do every day.
These types of attacks and the framing of the issue should sound familiar to the criminal defense bar. As a former prosecutor, I have been on both sides. I can genuinely attest to the passion and pride that comes with both roles in our legal system. But as Judge Stilling, who ended up losing her re-election bid, clearly stated, defense lawyers are not a “cog in the wheel of the justice system.” It is beyond unfortunate that attacks such as these continue to be a reoccurring theme in judicial elections. It is plain wrong.
Returning to my inaugural remarks as NACDL’s president, I stated, “Whether a judge is attacked in response to a particular ruling or in the increasingly cash-influenced election process, the organized bar has a responsibility to defend the independence of the judiciary. We need judges who are not afraid to enforce the constitutional rights they swore to uphold.” This is something NACDL will continue to emphasize and seek to reform, no matter the level within the judiciary. NACDL’s Task Force on Judicial Independence will soon announce a series of initiatives to guarantee that the organized bar will play a vital role in exposing and opposing reckless attacks that denigrate judges for adherence to constitutional principles. Stay tuned.
Notes
1. Jim E. Lavine, Challenges and Opportunities, THE CHAMPION, August 2010 at 5.
2. Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).
3. John Gramlich, Judge Fights in Iowa, Illinois Signal New Era for Retention Elections, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/12/04/AR2010120403857.html (last visited May 9, 2011).
4. JUSTPAC attack ad audio available at http://www.youtube.com/watch?v=0NfYMUDsR0U (last visited May 9, 2011). For more coverage of the Justice Kilbride race, see Norman L. Reimer, Fear Unleashed: Money, Power and the Threat to Judicial Independence, THE CHAMPION, November 2010 at 9.
5. Monique Garcia, State Supreme Court Justice Wins Retention Battle, available at http://www.chicagotribune.com/news/local/ct-elect-kilbride-20101102,0,5755646.story (last visited May 9, 2011).
6. Wisconsin Democracy Campaign, Smear Groups, Candidates Spent $5.4 Million on Supreme Court Race, available at http://www.wisdc.org/pr041911.php (last visited May 9, 2011).
7. Laurel Walker, Prosecutor Unseats Doyle Appointee on Waukesha County Circuit Court, available at http://www.jsonline.mobi/newswatch/119302349.htm (last visited May 9, 2011).
8. Laurel Walker, Waukesha Court Race Centers on Experience, available at http://www.jsonline.com/news/waukesha/118692994.html (last visited May 9, 2011).
