Tuesday, December 03, 2013

WGN/ Medill Watchdog investigation Day One: Well qualified judges are not being elected from the Subcircuits? Really?

I can't repost Mark Suppelsa's report from last night's Channel 9 newscast, but I can provide this link. (See also, the Medill Watchdog summary of last night's segment.)

The text of the WGN piece (at the first link) quotes former U.S. Attorney Anton R. Valukas, now Chairman of Jenner & Block, as saying the problem with the Cook County judiciary is weak judges created by the subcircuit system. Valukas thinks subcircuits are "terrible."

WGN's report mentions two 2012 subcircuit races, one a 3rd Subcircuit race in which politicians muscled aside all possible opposition, including the judge serving in that vacancy pursuant to Supreme Court appointment, clearing the way for the scion of a well-connected family to run unopposed. This candidate did not bother to submit to bar association screening and was, accordingly, rated unanimously unqualified or not recommended by all evaluating bar groups. The other was a 7th Subcircuit race (one of four in that subcircuit in 2012) where a well-qualified, highly regarded judge, sitting pursuant to Supreme Court appointment, was narrowly defeated (by only 371 votes), losing to a female City of Chicago hearing officer with only 10 or 11 years' legal experience -- and who did not submit her credentials to any of the bar groups for evaluation either. (An abysmal turnout in the 2012 primary, particularly in the 7th Subcircuit, clearly seems to have played a role in this upset.)

We will save for another day a philosophical discussion of whether positive bar group evaluations are the gold standard for predicting good performance in judicial office. Accepting that as a given, there were two -- count 'em -- two winners in 2012, out of 23 contests, where the winners refused to submit to bar screening.

Of the 21 other winners, two more had significant problems with the two most influential bar associations. Another 7th Subcircuit candidate was rated not qualified by both the CBA and the CCL -- but positively by eight of the other 10 Alliance bar groups, including the ISBA. In the one 2nd Subcircuit race, a candidate rated qualified or recommended by every bar group lost his race to a candidate deemed not qualified by the CBA and CCL -- but rated positively by eight of the other 10 Alliance bar associations.

The one race for a 10th Subcircuit vacancy, like the somewhat infamous 3rd Subcircuit race, involved a political figure whose presence in the race caused all other candidates, including the judge appointed to that vacancy, to bail out. But this political figure did submit his credentials to the bar groups and was found qualified or recommended by both the CBA and CCL and all of the other Alliance bar associations.

In fact, of the 23 subcircuit contests in 2012, aside from the two highlighted by WGN, all of the judges elected had support from the majority of bar associations conducting evaluations, and 19 of those 21 were rated qualified or recommended by the vast majority of all the evaluating bar groups. There were a number of races in which voters faced difficult choices between or among a number of well qualified candidates.

That's actually a pretty good result for bottom-of-the-ballot races that are almost completely ignored by major media outlets. (Don't take my word for it -- check my figures if you wish.)

Have there been some "weak" judges elected since the subcircuits were created in 1992? You betcha there have. But is that the fault of the subcircuit system, or is that a predictable result of the fact that those races have taken place largely out of public view?

Better, I say, to call attention to these important races than to unfairly dismiss the entire process as "terrible." This is the process we have; we are not going to change systems anytime soon because there is absolutely no political consensus about what might be better. Yes, many (but not all) of the bar associations and the silk-stocking (or do you say white shoe?) law firms want "merit selection"... but given our state's history, do we really want the governor -- or any other political officeholder -- making long-term judicial appointments?

If WGN concludes this week's series by saying it will spotlight judicial races going forward, interviewing candidates in close races, looking into their backgrounds and their bases of support, I for one will stand up and cheer.

But I'm not holding my breath.


Anonymous said...

eFrankly, the normal electoral system isn't the major problem - non-machine candidates get elected all the time.

The real issue is that something needs to be done about retention - where even the worst of the worst get reelected - either raise the percentage or make judges run in regular elections to get re-elected. If we can accept appointed sitting judges running in contested elections to keep their seats, why not previously elected judges

Jack Leyhane said...

I suspect that WGN will come back to retention. I don't think we really want to subject judicial candidates to contested primaries after they are first elected. Winning a contested primary is roughly equivalent to successfully navigating between Scylla and Charybdis -- and Odysseus had to do that only once. That's enough for judges, unless of course we want to make them full-fledged politicians.

As for retention elections, I would suggest that giving voters more media coverage and information will help the best judges -- and expose the worst. There are usually one or two truly weak links in any retention election -- bar associations might be better advised to focus on the most seriously challenged jurists instead of trying to purge 10 or 12 judges that may need improvement in some areas. Establish the idea that a judge can be defeated for retention first, then they can worry about how best to perfect the entire bench.