Wednesday, October 20, 2010

In response to a reader's question: More about recalled judges

My post the other day about the Supreme Court's recalling several judges to serve, including some judges who ran unsuccessfully in February's primary election, prompted an email from a reader who asked, "Whatever happened to the will of the voters? ... What about all the others who lose their elections? Please explain."

The reader cited the specific example of Judge Michael Ian Bender, who was appointed to a 9th Subcircuit vacancy, but was unable to hold that seat in the primary. Judge Bender's original Supreme Court appointment expires December 6, when the winner of that primary election, Steven James "Steve" Bernstein, will be sworn in as a judge. The will of the voters will thus not be frustrated. However, the Supreme Court has concluded that Judge Bender has performed well in office and has decided to extend Judge Bender's service by recalling him.

The court could have appointed Judge Bender to another vacancy. In fact, the court has just appointed another candidate from that same crowded 9th Subcircuit primary field, Mary S. Trew, to a new vacancy in that subcircuit. But the recall mechanism is authorized under Section 15(a) of Article VI of the Illinois Constitution which provides, in relevant part, "Any retired Judge or Associate Judge, with his or her consent, may be assigned by the Supreme Court to judicial service for which he or she shall receive the applicable compensation in lieu of retirement benefits." Before the mandatory retirement age for judges was struck down, the recall mechanism had been used to keep productive judges in service. But it has also been used to keep other, well-regarded jurists in office.

A number of very highly regarded judges are among the more than 60 who will face the voters in November on the Cook County retention ballot. Any judge who fails to secure a 60% favorable vote will be removed from office -- but no Cook County judge has lost a retention election since 1990. Historically, the most highly regarded judges get the most favorable votes when the retention votes are counted. It is therefore safe to predict that, even if one or more judges are removed from office via the retention ballot this year, the voters will choose to keep the vast majority of jurists, including the most highly regarded ones.

Twenty years ago, however, the Supreme Court recalled a judge who lost a retention vote back to judicial service. There was an outcry, at the time, from several of the bar associations, the Chicago Council of Lawyers in particular. Because no Cook County Circuit Court judge has lost a retention election since 1990 (and because I have no inside information whatsoever) I can present this only as speculation on my part; however -- unless something truly unforeseen happens on the retention ballot -- it is probably safe to predict that the Supreme Court will not recall any jurist turned out of office in that election to the bench.

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