Supreme Court 3rd District: Burke, O’Brien vie for open seat

[October 11, 2022]  By PETER HANCOCK
Capitol News Illinois
[e-mail]

SPRINGFIELD – The race for the 3rd District Illinois Supreme Court seat features two experienced jurists in a contest that could determine partisan control of the court for the next several years.

Incumbent Justice Michael J. Burke, a Republican who was appointed to the court in 2020 to fill a vacancy created by the retirement of former Justice Robert Thomas, is seeking a full 10-year term. He faces Democrat Mary Kay O’Brien, a justice on the 3rd District Court of Appeals, who has spent nearly 19 years on the bench.

Burke has served on the bench for 30 years. A former assistant state’s attorney in DuPage County, he was appointed to the circuit court there in 2001 after serving as an associate judge since 1992. He won election to that seat in 2002 and retention in 2008. In July 2008, he was assigned to the appellate court. In 2014, he was elected to that court and remained there until his elevation to the Supreme Court.

“I think the most important thing when it comes to picking a candidate, the person you want to sit on the highest court in the state of Illinois, it really boils down to experience, and I clearly have the experience over that of my opponent,” Burke said during a recent podcast interview. “I've been a judge, I'm not a politician. I've never been a politician.”

O’Brien served in the General Assembly from 1996 to 2003 before becoming a judge. She was elected to the 3rd District appellate court in 2004 and won retention in 2014. In addition to serving as a judge on the court, she also handles several administrative duties.

She is the presiding judge in the appellate district and serves on the Illinois Supreme Court Legislative Committee, is an alternate to the Illinois Workers’ Compensation Commission and serves on the disciplinary arm of the Judicial Inquiry Board.

“I have a unique perspective from the fact that I practiced small-town law and I was also a legislator,” she said in a separate interview. “So I had clients, I had a small business, and I also had the opportunity to come into contact with almost every area of the law.”

Partisan Control

Illinois’ seven Supreme Court justices are selected from five geographic districts in partisan races. Three are elected from the 1st District, which is Cook County, and one each is elected from the other four.

Last year, Illinois lawmakers drew new district maps for the appellate courts for the first time in more than 50 years. As a result, Burke, who was originally appointed to fill a vacancy in the 2nd District, now finds himself running for a full 10-year term in the newly redrawn 3rd District, which includes DuPage, Will, Kankakee, Iroquois, Grundy, LaSalle and Bureau counties.

Democrats currently hold four of the seven Supreme Court seats, including all three from Cook County. The last person elected from the 3rd District was former Justice Thomas Kilbride, a Democrat who lost his bid for retention in the 2020 election – the first Illinois Supreme Court justice to do so.

If Burke wins his race and Republicans also claim the newly redrawn 2nd District, the court’s majority would flip to the GOP.

But Burke and O’Brien each downplayed the role partisanship plays on the court.

“I like to say that our robes aren't red and they're not blue, they're black,” Burke said.

He said each judge brings their own perspective.

“I mean, if there's someone who comes in, I guess, with a Republican conservative type perspective (they) may look at something a little differently than someone who comes in with maybe more of a liberal perspective. I guess that's something that's to be considered,” he said. “But generally, we should really be deciding these cases based upon the facts and the law.”
 

Burke noted that Kilbride was targeted in the 2020 election in part because he was part of the four-vote Democratic majority that blocked a constitutional amendment from appearing on the 2016 ballot. The amendment would have put the job of legislative redistricting in the hands of a nonpartisan commission rather than the General Assembly if it was approved by voters.

Burke said that ruling, which preceded his time on the court, caused some to criticize the court for being partisan. But he said most decisions since he’s joined the court have not been decided on strictly partisan lines.

Justices Mary Kay O'Brien and Michael Burke are each vying for a spot on the Supreme Court representing the 3rd District. Images from obrienforsupremecourt.com and justicemikeburke.com

O’Brien also said partisanship should not matter in judicial decisions.

“I think because of the role of the judicial branch, it really doesn't matter who is in power,” O’Brien said. “And it's not so much whether we like the law, because that doesn't matter. It's whether or not it's constitutional, whether it has the right framework. Those are the important things.”

Abortion

Earlier this year, the U.S. Supreme Court reversed its longstanding decision in Roe v. Wade, which legalized abortion nationwide, effectively sending the question of abortion regulation back to the states.
 

Even before that decision, however, advocacy groups concerned about the court’s increasingly conservative rulings, including the Center for Reproductive Rights, had begun challenging state regulations in state courts, hoping to get favorable rulings from those courts declaring that abortion rights were protected under state constitutions.

That hasn’t happened in Illinois, in part because the General Assembly in 2019 passed the Reproductive Health Act which, among other things, declares abortion access a “fundamental right” under Illinois law. But Democrats are concerned that if Republicans win a majority on the state’s high court, it could open the door to legal challenges.

Specifically, O’Brien’s campaign recently released a TV ad alleging Burke has been endorsed by groups that support banning all abortions. And the independent group called All for Justice has run an ad alleging both Burke and 2nd District GOP candidate Mark Curran support banning abortions, even in cases of rape and incest.

Burke strongly denied that he has ever made any statement or given any indication of how he might rule on the issue of abortion, and on Monday a law firm representing his campaign issued a letter to stations demanding that they stop airing the ad. He also said the ads are an indicator of how politicized judicial races have become.

O’Brien also was reluctant to discuss how she would rule on any issue. Her campaign website indicates she has been endorsed by groups that support abortion rights, including Personal PAC, Equality Illinois and Illinois NOW.

O’Brien and Burke both said they routinely tell people and organizations who endorse them that the endorsement will carry no weight when they decide a case.

Madigan ties

O’Brien has also been the target of political attacks during the campaign. Republicans have criticized her for having close ties to former House Speaker Michael Madigan while she served in the General Assembly and for overturning convictions of people who’d been found guilty of violent crimes.

O’Brien, however, denied being part of the so-called “Madigan machine,” saying that during her time in the General Assembly, she received very little help from the Democratic Party.

“I was a Democrat that was elected without Mike Madigan's help because the district was overwhelmingly Republican, 65 percent,” she said. “So I didn't get help from the party in 1996 because they just didn't feel that it could be won. And the voters returned me four times to the same seat that didn't change – the demographics of the district still haven't changed. It’s still my hometown.”

As for overturning convictions of violent criminals, O’Brien said that is sometimes part of the job of being an appellate judge.

“Any time a judge is worried about a decision having a political impact, then maybe they're in the wrong profession,” she said. “I have always believed … when people talk about technicalities, I remind people, the Constitution is not a technicality. Our statutes and this constitution of the state and of the United States guarantee certain processes and freedoms and requirements in the criminal and civil context, and without the judiciary upholding those requirements, we really aren't doing our job.”

Both Burke and O’Brien discussed several other issues, from administrative processes of the court to what decisions they have found challenging, during their interviews with Capitol News Illinois which can be found here.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government that is distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.