* Background is here if you need it. ILGOP…

Madigan Machine Judge Mary K. O’Brien is misrepresenting Illinois Supreme Court Justice Michael Burke in a negative TV ad regarding the U.S. Supreme Court’s Dobbs decision that overturned the Roe v. Wade abortion decision. O’Brien offered no proof or citation for her misleading claims.

Unlike Mary K. O’Brien apparently, Justice Burke supports judicial independence and has not expressed any opinion on that issue or any issue that may come before the Illinois Supreme Court, which is ethically required of judges and candidates for judicial office. That may be partly why the Illinois State Bar Association, which is comprised of attorneys from across the legal field and political spectrum, has rated Justice Burke as “Highly Recommended,” a rating higher than that of O’Brien.

The Illinois Republican Party is calling on Mary K. O’Brien to take down her misleading ad and apologize for running a smear campaign against a respected and qualified judge, Justice Michael Burke.

“It’s unsurprising that Madigan Machine Judge Mary K. O’Brien is resorting to misleading attacks against Justice Michael Burke so close to Election Day. As someone who cut her teeth as a Madigan loyalist in the General Assembly, O’Brien seems to be following the Madigan playbook. We call on O’Brien to take down her misleading TV ad and apologize for running a smear campaign against Justice Burke,” said Illinois Republican Party Executive Director Shaun McCabe.

Judge Mary Kay O’Brien’s deep ties to the Madigan Machine are well known. O’Brien was appointed as an Appellate Court Justice during her final year in the Illinois General Assembly after voting with Madigan 93.6% of the time. O’Brien also “Helped Madigan Regain The Speakership,” and received over $200,000 in political contributions from political groups led by Madigan over the course of her career.

* The claims in the ad are mostly based on an interview Justice Burke did earlier this year. Some excerpts supplied by the ILGOP…

19:30: Q: “How is the situation in Illinois any different if at all now that Roe v. Wade has been overturned by the Dobbs decision?”

Burke: “It’s not.”

20:02: Burke: “What Dobbs did was very specifically sent the issue of abortion back to the state legislatures, and Illinois has spoken on that.”

25:08: Burke: “If the General Assembly passes a law, it’s clear and unambiguous, it should be applied as written. Whether I would have voted for it, or whether I would have signed it as a governor doesn’t matter. It should be applied as written, and I say that to people when I’m out talking to groups. I say if you don’t like the laws that are passed by the legislature, your obligation is to get new legislators, not to go to the courts.”

Q: “So you don’t legislate? That’s what you’re saying?”

Burke: That’s what I’m saying.”

Q: “If you don’t legislate, what do you do?”

Burke: “We apply the law as it’s written to the facts. We’re called upon to interpret the law and interpret constitutional provisions from time to time.”

26:26: Q: “If you had a case before you dealing with abortion issues, would you start with the U.S. Constitution, would you start with the Illinois Constitution, where would you start as you began to think about that?

Burke: “Well, you would probably start with the statute…”

* OK, now let’s go to the MKO campaign’s response…

The stakes in this Illinois Supreme Court race could not be higher. Now that the US Supreme Court has overturned Roe versus Wade, only Illinois law protects a woman’s right to choose in our state. Extremists are hard at work trying to challenge Illinois law.

This Illinois Supreme Court race will decide who controls our courts. Justice Mary Kay O’Brien has been endorsed by the leading pro-choice advocates in Illinois. Mike Burke has made clear that he agrees with the decision to overturn Roe, and he is supported by the same anti-choice groups that are trying to overturn Illinois law protecting that right.

Justice Burke is trying to backtrack, but his position is clear. He has told us where he stands.

In an interview with Jeff Berkowitz posted July 28, 2022, Mike Burke was asked if the majority that overturned Roe were originalists. He said yes, and was then asked if he was an originalist to which he replied, “…I am…That’s the way I view the constitution.”

Burke also said when it comes to the right to choose, there is no enumerated right to privacy in the US or State Constitution.

The only statement we have from Mike Burke is that he supports Dobbs. If he opposes Dobbs, he should say so.

Justice Burke is supported by pro-life groups, including Illinois Right to Life Action, a group who is strongly anti-choice. On April 29, 2022 of this year Burke was photographed at the Right to Life 53rd Annual Leaders for Life Banquet.

Justice Michael Burke is endorsed and found qualified by the Illinois Right to Life Action. Voter Guides - Illinois Right to Life Action

Justice Burke has also been a member of the St. Thomas More Society, a group for DuPage County attorneys. Illinois Right to Life filed an amicus brief in Dobbs, drafted by St. Thomas More Society’s attorneys, advocating overturning Roe.

* And the campaign supplied its own set of quotes from that same interview…

Burke on calling himself, the Dobbs majority Originalists

23:34 BERKOWITZ: So the majority on the court, and this was a, was a split decision on some things, it was 5-4, some 6-3. Something like that?

BURKE: Right.

BERKOWITZ: Is there a concurring opinions but certainly the majority whether it’s 5-4 or 6-3 those folks, those justices, who basically decided as you’ve just stated, they’re what people often call Originalists - Textualists - would that be correct?

BURKE: That’s correct. It actually would have been - the - it would have been 5-4 on the way I described it, because Justice Roberts wrote a separate opinion. It didn’t really go along with that analysis.

BERKOWITZ: He would have decided without overturning Roe, but basically saying the state the Mississippi statute before them was constitutional.

BURKE: Right.

BERKOWITZ: But he would have gone further

BURKE: Under Casey, yeah.

BERKOWITZ: Okay. - but there was 5-4- really faced- really, it seems, did what you said. They were originalists. They went through that history. They went through what the wording said, this is what these prior decisions had decided. This is our precedent. Not Roe. And you’re an Originalist, right?

BURKE: Well, I am. I mean, that’s the way I view the constitution. That’s the way I view statutes.

Burke stating abortion is not an enumerated right

27:05 BURKE: You know, if you look at the issue of abortion - again because it’s not an enumerated right in any constitution, whether the US, or the state constitution. It’s not an enumerated right.

* Since both sides only gave snippets of Burke’s “enumerated right” comment, let’s look at the whole thing…

Q: If you had a case before you dealing with abortion issues, would you start with the U.S. Constitution, would you start with the Illinois Constitution, where would you start as you began to think about that?

Burke: Well, you would probably start with the statute and then look at the statute and then again, a lot of it is is determined by the path that you’re led down by the lawyers to some degree. You have to listen to their arguments and read their briefs and the cases that they’re citing. You know, if you look at the issue of abortion - again because it’s not an enumerated right in any constitution, whether the US, or the state constitution. It’s not an enumerated right.

I don’t know where you would go other than to say that, again, Dodds says now send it back to the legislatures and then we have to look at the legislature’s enactment to determine whether it’s otherwise valid, but remember that the US Supreme Court didn’t say abortion was illegal. It’s sent back for regulation by the states. So, that’s kind of a tricky question as to where do you start, what Constitution? Because, really, Dodds is the ultimate arbiter of what the 14th Amendment says. And they said, ‘This is a state issue. Let the state legislatures decide it.’

Q: So you start certainly with, well, you certainly take a look at the Illinois statute, if that’s being litigated then…

Burke: Right

Q: …which talks about, you refer to it, I guess, as being signed in what 2020? The Illinois statute that made abortion a fundamental right…

Burke: 2019

Q: 2019, Okay. You certainly are going to look at that because that’s the law in Illinois.

Burke: Sure.

Q: You might want to look at the US Constitution…

Burke: Right.

Q: …and remind yourself with the 14th Amendment says.

Burke: Right.

Q: You might want to look at the Dobbs decision, because that’s, that’s your guide, right?

Burke: Right.

Q: They said a few things other than just sending it back. They gave you the history that you talked about right?

Right.

Q: So those are the things you’d be, anything else that I’ve…

Burke: No. But again, it’s put it back in the legislature’s lap, not necessarily the court’s. And will we be called upon to review legislation at some point in time? Possibly.

* The MKO campaign also sent this, which I believe I’ve posted before…

Thoughts?

[I briefly took this post down because I’d made a mistake in the transcript.]