Gov. Bruce Rauner picked an unexpected fight with a powerful enemy Tuesday, accusing the Illinois Supreme Court of being part of a “corrupt system.”
In an attack that legal and political experts say appears to be designed to pile pressure on the court as it weighs the legality of a law that would cut retirement benefits for state workers, teachers and retirees, Rauner told the editorial board of the Daily Herald,“I don’t trust the Supreme Court to be rational in their decisions.”
Rauner, who donated more than $25 million to his own gubernatorial campaign, noted attorneys with cases pending before the court regularly donate campaign cash that helps elect and retain Supreme Court justices.
He said he’d prefer a system under which justices were appointed on merit instead of being elected. “I think they’re activist judges who want to be legislators,” he said.
While most in the legal world agree the election system for selecting judges is broken, constitutional lawyers and academics said if Rauner hoped to lean on the court before it rules in the landmark pensions case, he’s making a risky move.
The court is mulling the fate of a 2013 law that would cut state employees’ retirement benefits. Unions say workers’ pensions are protected by the state’s constitution, butRauner says he wants to amend the constitution to ensure his even further-reaching plan to move state workersinto 401(k)-style planswouldn’t be tossed by the courts.
“It was surprising, to say the least,” Harold Krent, dean of the IIT Kent College of Law, said of the governor’s comments about a “corrupt” court. “It does notseem to me to be appropriate to criticize a co-equal branch of government in such a harsh way. I don’t know what he wants to accomplish. But it seems like it might boomerang, if he is seen to be disrespectful to the court for no reason.”
Daniel Coyne, a former president of the Chicago Lawyers Council, which ranks candidates for the bench, agreed a non-elected judiciary would be an improvement, but said he doesn’t believe lawyers are seeking preferential treatment when they donate to judges’ campaigns.
“All lawyers want is to see good judges on the bench,” he said, adding it is almost impossible to unseat a sitting judge at the ballot box.
The danger of big money in judicial elections was illustrated by the bitterly contested downstate 2004 election and 2014 retention of Justice Lloyd Karmeier, in which competing attorneys and business interests spent millions, according toJohn Jackson, a professor at the Paul Simon Institute at Southern Illinois University.
He cautioned that moving to an appointed system, as is used in more than 20 other states, was not necessarily a solution since it simply “removes the politics to the governor’s office.”
To some, Rauner’s move is a watered-down version of President Franklin Delano Roosevelt’s attempt in 1937 to stack the U.S. Supreme Court with sympathetic justices. Though Congress stymied a bill that would have increased the size of the court, the pressure Roosevelt placed the court under is believed to have swayed it in favor of the New Deal.
Professor Robert Bennett of Northwestern University’s law school said Rauner may have thought “he could nudge the Supreme Court into the direction he’s seeking on the pension decision.” But it’s possible that he will instead anger the court and “it is unclear which of these two effects will dominate,” Bennett said.
He added there is always a tension in democracy between the courts and the executive branch. But, he said, if voters believe that judges make “value judgments” based solely on a strict interpretation of the law “we’re all kidding ourselves.”