Friday, August 26, 2011

In defense of the Supreme Court's recent practice of recalling appointed judges who've lost in a primary election

The Chicago Tribune reports this morning that the Illinois Supreme Court has agreed to "no longer use their 'recall' power to keep judges on the bench after they lose an election."

The linked Tribune article, by Jeff Coen and Todd Lighty, notes that "since 2000, the Supreme Court has reappointed 18 judges to the Cook County Circuit Court bench after they were turned away at the polls, including 13 currently hearing cases."

Many of these, the Tribune article notes, have been active in Democratic politics.

(Gosh. Who would have suspected that? And in Cook County, too.)

The article quotes Malcolm Rich, the executive director of the Chicago Council of Lawyers, and David Morrison, deputy director of the Illinois Campaign for Political Reform, as praising the move. Morrison said the old policy of recalling some judges defeated at the polls (whom he characterized as "voters' rejects") was disrespectful to the voters. And Mr. Rich, for one, was only cautiously optimistic that the Supreme Court would stick to this policy, noting that the court had adopted a similar policy in 1993.

Let's try and put this in perspective, however.

First, the hue and cry which arose in the early 90's over the recall of judges defeated for election swirled largely around one judge, the late Angelo Mistretta, who was defeated in the 1990 retention election -- a straight up and down vote on whether he should be retained in office. Mistretta's 1990 retention bid was opposed by both the Chicago Bar Association and the Chicago Council of Lawyers. The Council was so upset by Mistretta's recall to judicial service that it threatened to sue.

William Grady's November 19, 1992 article for the Chicago Tribune noted that 10 of 27 judges recalled to the bench that month "would have been forced to step down after losing contested primaries last March." Grady's article acknowledged that this group "includes some highly regarded judges who were defeated in the primary." But Grady pointed out two of these (other than Judge Mistretta) had "received negative evaluations from the reform-minded Chicago Council of Lawyers before the primary."

And therein hangs the distinction between the current controversy and the one 20 years ago.

In order to be "recalled" to judicial service, one must first have served as a judge. There are no sitting judges in primary elections except those who came to the bench via Supreme Court appointment. And no one has been appointed to the bench by the Supreme Court recently except men and women who have received unanimous approval from the evaluating bar groups, including the Chicago Council of Lawyers. (The last time the Supreme Court appointed a judge without the unanimous consent of all the bar associations was in May 2007; the individual in question lost his 2008 primary bid in the subcircuit to which he was appointed and was not, as far as I can tell, recalled. If anyone knows of a more recent Supreme Court appointment of a person not unanimously recommended by the bar associations, please advise.)

Much as we might wish it otherwise, too many voters select judges on the basis of sonorous appellations or because the name was on a palm card handed them as they walked into the polling place. Many of the individuals, therefore, who have defeated appointed judges in primary elections are persons who are, in the opinion of some (and sometimes all) of the evaluating bar associations, not qualified to serve on the bench. This does not mean the the persons who've won election will not become fine judges. Most of them, even those who were unable to garner strong support from the bar associations when first seeking office, wind up having useful and honorable careers -- and it is a fact that many persons who were unable to secure positive evaluations as judicial candidates find that the same bar associations will endorse their retention bids as sitting judges six years later.

But the eventual success of the judges ultimately elected does not, and should not, automatically disqualify from further service those that could not (whether because of an inability to obtain party endorsement or otherwise) prevail in a primary election.

Traditionally, at least in Cook County, the Supreme Court will not recall judges to service against the wishes of the Chief Judge of the Circuit Court of Cook County. In other words, the recalled individuals were found worthy of appointment by the Supreme Court in the first place and then functioned well enough in office that their supervisors asked to have them returned despite their electoral misfortunes. Some of them, it is true, are related to other judges by blood or marriage. Everybody comes from somewhere. But they didn't get on the bench in the first place until all the bar associations said they were worthy of donning a robe.

That was not always the case in the 1990's.

And yet, even in 1993, when the Supreme Court previously agreed to stop recalling judges who'd lost their places at the polls, then-Chicago Council of Lawyers President Barry Miller told the Tribune's William Grady, that the new policy, while "clearly proper," would mean that the bench would lose some good judges. Today, under this new policy, all of the judges who have been serving under recall orders, but who lost their primary bids, would be considered qualified. How does the loss of these jurists benefit either the court or the public?

Most (though not all) of the major bar associations endorse the idea of merit selection of judges in Illinois -- an appointive system as opposed to our present electoral system. The Chicago Council of Lawyers is second to none in its endorsement of merit selection. But it is today applauding the demise of a de facto merit selection system that had been running in tandem with the electoral one. Obviously, I just don't understand politics.


Anonymous said...

One thing I think you overlook, however, is that some of the recalled judges were passed over by their peers in Associate judge voting.

I would agree that some/many sitting judges may lose and election based on name, crowded ballots or any number of reasons.

Most of those judges have been picked up in the Associate Judge voting. See, James Snyder as an example. To me, the problem comes when someone like Shapiro or Fletcher are recalled after not only losing elections, but having their own peers fail to elect them as associates (more than once!).

Harold L. Wallin said...

I was just having this discussion today with some other attorneys. It is a mistake to not consider qualified judges, who have been on the bench and done a good job, and are rated qualified by the Bar Associations, simply because they lost at the polls due to name recognition or some other factor.

Albert said...

I'm glad you addressed this because I had mixed feelings about the article myself. If there's a constitutional issue here, then absolutely that needs to be clarified. But there's a big difference between a sitting circuit judge who loses a retention election and a primary candidate who, say, comes in second in a many-candidate contest. Characterizing them both as "rejected," that's a pretty big stretch. And whether or not the candidate is already an associate judge, that's another important consideration that the article didn't emphasize.