The Chicago Tribune is upset again this morning about Cook County judges. In a front page article, "Defeated judges find way back to bench," reporters Jeff Coen and Todd Lighty grouse that the Illinois Supreme Court "kept seven politically connected judges on the Cook County bench after they were rejected by voters, a common practice the high court had pledged to curtail."
Before making that assertion, Messrs. Coen and Lighty might have reviewed their own August 26, 2011 article, "State high court overrules voters on judge picks." In 2011, they wrote,
[A] Supreme Court spokesman told the Tribune that justices privately decided months ago they will no longer use their "recall" power to keep judges on the bench after they lose an election.The Supreme Court has not violated this pledge, the insinuations of the Tribune notwithstanding.
The Illinois Supreme Court has the power, under two different provisions of Article VI of the 1970 Illinois Constitution, to both appoint persons to judicial vacancies as they occur and to recall retired judges to service.
It was the Court's use of the recall power two decades ago that gave rise to the controversy. And when all the smoke was blown away, the fuss over the Court's alleged misuse of the recall power in the early 90s swirled largely around the recall of a single 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." But Grady's article acknowledged that this group "includes some highly regarded judges who were defeated in the primary," although two of these (other than Judge Mistretta) had "received negative evaluations from the reform-minded Chicago Council of Lawyers before the primary."
The distinction between a judge thrown off the bench by the voters in a retention election and a qualified judge unable to prevail in a hotly contested, multi-candidate primary (sometimes including a candidate with a 'good ballot name' and, perhaps, in the estimation of the bar association evaluators, not much else by way of qualification for the bench) ought to be obvious, even to the Tribune.
Until Maddux v. Blagojevich, 233 Ill.2d 508, 911 N.E.2d 979 (2009), the Illinois Supreme Court regularly used its recall power to both keep some judges in office past the mandatory retirement age of 75 and to bring back some appointed judges who'd been unsuccessful in their primary runs. After the mandatory judicial retirement statute was invalidated in Maddux, the principal use of the recall power was to keep disappointed candidates in judicial office.
The Chicago Council of Lawyers was particularly vocal in criticizing this use of the recall power. In August 2011, after the Supreme Court had already agreed to no longer recall candidates who lost their primary races, this blog defended the Court's just-abandoned procedure. Thereafter, upon reflection, even the Chicago Council of Lawyers somewhat moderated its stance, stating, "The council supports the appointment of quality judges to the bench with appropriate safeguards against political influence."
Isn't that the objective? Shouldn't the concern be whether the Supreme Court is appointing (or reappointing) judges to the bench who are capable and qualified to serve?
In the case of the seven judges who 'found their way back to the bench' after losing their primary races (whether in 2012 or 2008), all were rated qualified or recommended by every one of the evaluating bar groups in their respective primary races with the sole exception of Judge Daniel L. Peters -- and he was deemed qualified by the Chicago Bar Association, the Illinois State Bar Association, the Women's Bar Association of Illinois and all of the other Alliance bar groups with the sole exception of the Chicago Council of Lawyers.
With nothing to complain about in terms of the competence of the judges reappointed by the Illinois Supreme Court, the Tribune resorted to sneering that many of these individuals had actually donated money to the Democratic Party.
Oh, spare me.
In our current local political environment, where the Democratic Party is so overwhelmingly dominant, a lawyer who is politically active will almost by necessity be active in the Democratic Party.
A lawyer or judge who is fortunate enough to obtain slating by the Cook County Democratic Party is expected to make a significant contribution to the party coffers. This is not some sort of bribe; it is a contribution made in order to offset the cost of the mailings that the party will make on the candidate's behalf. These mailings reach every likely voter in the Democratic Primary.
In a county as big -- and as blue -- as the County of Cook, having one's name and picture on that mailing can constitute a substantial advantage, and probably well worth the investment. When reinforced on Primary Election Day by the palm cards distributed by precinct workers for each of the county's ward and township organizations, the advantage conferred by party slating may be decisive. Of course... sometimes the party's endorsement is not adhered to by particular wards or townships and the investment is unsuccessful. But what serious judicial candidate would forgo the opportunity to be slated by the Cook County Democratic Party, if that was a real possibility?
Yes, I understand: The Tribune is not in favor of electing judges. Neither is the Council. Most (though not all) of the bar associations endorse merit selection of judges instead of our current electoral system.
But this is the system we have now, even though the Tribune is unhappy about it.
Is there room for improvement in the Supreme Court's appointment process?
The Council has advocated for a more transparent judicial appointment process in Cook County.
Downstate, when judicial vacancies occur, the Supreme Court justice whose district includes the area where the vacancy occurs will appoint a committee to consider applicants for the vacancy and even publish the names of all applicants, soliciting public comment about the applicants.
But there are many more judges in Cook County than in Downstate circuits and, accordingly, more frequent vacancies. Appointing a new committee and separately and publicly considering applicants each time a vacancy occurs may not be appropriate or efficient. But each of the three Supreme Court justices elected from Cook County has a committee of some sort to assist in reviewing applicants for appointment. There are always more applicants than openings.
Could this process be made improved? That's an easy one. There is room for improvement in every human endeavor, newspaper reporting included. Case in point: The Tribune does a disservice today to the Supreme Court, to the judges singled out, and to its readers by inventing a controversy where none really exists.