Supreme Court Justice Kilbride Defends Ties to Madigan, Controversial Opinions
Supreme Court Justice Tom Kilbride swears in new attorneys at a ceremony in Kankakee in 2017. He is seeking his third term on the state’s high court in a November retention race. (SOURCE: Kankakee Daily-Journal)
A political battle for the partisan swing of Illinois’ highest court is unfolding in the state’s north-central region.
Supreme Court Justice Tom Kilbride — whose district spans the width of Illinois, from Rock Island County in the west to Kankakee County in the east — is asking voters to grant him a third 10-year term. His campaign is touting endorsements from members of both major parties and technological advancements the court enacted while Kilbride was Chief Justice from 2010 to 2013.
But his opponents charge the 67-year-old justice, who was first elected to the highest court as a Democrat in 2000, has a record of ruling in favor of interest groups that made campaign donations to him. In television ads and campaign mailers, they point to cases in which Kilbride sided with labor unions, large trial law firms, and the state Democratic Party.
Whether Kilbride is successful will help decide the Supreme Court’s composition for the next few years. He is one of four justices elected as a Democrat — the only one from outside the Chicagoland area. That majority contributes to the Democratic Party’s control of Illinois executive, legislative, and judicial branches of government.
Retention races do not have opponents or posted political affiliations, so Kilbride is not running against a Republican candidate. He needs 60 percent of voters in the 21-county district to select “yes” on Nov. 3. Ten years ago, he passed that threshold by around 6 percent.
In an interview, Kilbride said he wants citizens to give him “a fair shot” at the polls — to consider his record as a Supreme Court justice, not the “negative ads.”
“What we expect from a judge is that a judge will be thoughtful and hear both sides of arguments,” he said. “And what I’m asking voters and the public is to apply the same standard in terms of judging my worthiness to stay on the court.”
When he served as chief justice, Kilbride championed access to justice and technological advancements. From October 2010 through 2013, the Supreme Court adopted rules to improve legal services for economically disadvantaged Illinoisans and created a mentorship program for new attorneys.
The justice is perhaps best known for pushing for cameras in courtrooms, but the Supreme Court’s e-filing system, which allows documents to be submitted to Illinois courts digitally, was largely started during his term as chief as well.
In a letter, a group of 103 lawyers and retired judges expressed their support for Kilbride, calling him “an honest, fair-minded, hardworking, and devoted member” of Illinois’ highest court. Among those Democrats and Republicans who “totally support his retention” are former Gov. Jim Thompson, who agreed to be included prior to his death; former Supreme Court Justices Robert Thomas, Benjamin Miller, and Philip Rarick; and former State Representative Tom Cross, a Republican from Oswego.
Kilbride mentioned the coalition’s support twice in an interview, pointing to it as proof that while not everyone may agree with his positions in cases, “nobody can say I’m out of the box.”
“Nobody can point to any decision of the court that I was in the majority or [issued] a separate writing that is not based on the law,” he added.
All judges in Illinois campaign as a member of a political party, but when they ask voters to grant them an additional term, that affiliation drops away. Kilbride emphasized that while he ran for a seat on the highest bench in 2000 as a Democrat, that label does not influence his approach to legal matters that come before him.
Justice Kilbride described his judicial philosophy as a “common sense” approach — justices do not decide cases based on popular positions, but what laws or the constitution state.
“Legal scholars wouldn’t agree that there’s a common sense brand of analysis, and I’m not advocating that either, but I’m saying in terms of how I look at a case — not how I would decide a case — I certainly factor in the practical aspects of what the legislature intended with the statute,” Kilbride said. “I think words mean what they say and we shouldn’t be drifting off and do interpretative statutory — I don’t want to say ‘LaLa Land’ but, you know, whatever that arena would be.”
But it is his tie to the Democratic Party, and support from Speaker Michael Madigan, that detractors point to as evidence of Kilbride’s unworthiness to continue to serve as justice.
In 2001, he joined with the court’s majority in upholding the state’s redrawn political map that was challenged as gerrymandered. The General Assembly, not the Supreme Court, should determine whether districts are drawn in a compact way, according to the opinion.
Kilbride “drew the unlucky straw,” he said, when he was chosen to author the Supreme Court’s 2016 majority opinion striking down a citizen initiative to take the redistricting power from lawmakers and give it to a citizen-led group, the so-called “Fair Maps Amendment.”
It was a 4-3 decision along party lines that took issue with how the proposed amendment was written. The constitution only allows citizen-led referenda to change the way the General Assembly operates, but the court ruled the Fair Maps amendment was too broad in its changes to the constitution.
Opponents to Kilbride’s retention argue the justice should have recused himself from the case because of Madigan’s financial support of his 2000 election and 2010 retention. The fact that he participated in the ruling and wrote the opinion indicates, to them, a “clear conflict of interest.”
There are other examples the group highlights. Almost all involve Kilbride as the lone dissenting voice in personal injury cases. Adversaries say the justice’s positions highlight his fondness for labor unions and trial lawyers.
But Kilbride, who spent nearly 20 years prior to becoming a justice as a private attorney, said his positions are “unquestionably” based on statute.
“I’m not ashamed of any of my votes,” he said. “And to make the link that because I’m supported by Mr. X, Y and Z or whoever, that I rule certain ways does not add up.”
Kilbride says he employs a firewall between himself and the knowledge of those who financially contribute to his campaign.
According to Illinois Supreme Court rules, such donations are not a categorical basis for recusal from cases. It is instead up to the individual judge to decide whether there is bias or an appearance of impropriety by remaining on a case.
Jim Nowlan, a former State Representative and chairman of the Citizens for Judicial Fairness committee seeking to defeat Kilbride, says Kilbride’s record is clear.
“After 20 years on the Court, Mike Madigan’s favorite judge Tom Kilbride represents the culture of corruption Maaldigan has created in Illinois, taking millions from Madigan and his allies and voting accordingly,” said Nowlan.
Ann Lousin, a professor at the John Marshall Law School in Chicago who helped draft Illinois’ 1970 constitution, said it is “unusual for a justice to want a third term on the court.” Only Kilbride and former Justice Charles Freeman would be the only justices in the past 50 years to start a third term on the court. Freeman, who served 27 years on the Supreme Court, retired in 2018 and died earlier this year.
Kilbride is running for a third term, he said, because of his love for the job. The justice did not think, he added, that this bid for retention would be as contentious as his first 10 years ago. At the time, detractors attacked him as being soft on crime. Now, the focus is on the allegation he rules on cases in a way that favors those who support him, not on the law.
“They are attacking me in the traditional political fashion. This is a time-tested attack ad scheme that they’re running on these ads on TV as well as the mail pieces that go to voters on a targeted basis against me, trying to tie me to [Madigan,] the guy who’s the most unpopular guy in the state of Illinois,” Kilbride said. “It’s just not true and it’s not fair. Judges are not supposed to venture into the political fray, so it’s very difficult to try and explain constitutional cases when it’s the world of the bumper sticker and the 30-second ad.”
As of Monday evening, Kilbride’s campaign had reported raising around $2.2 million, with a large percentage of those donations coming from attorneys, law firms, and unions.
A spokesperson for Madigan did not return a request for comment about why the speaker supported Kilbride in previous campaigns and whether he supports this retention race.
