"Who picks the pickers?" Local bar associations present seminar on judicial selection

The Chicago Bar Association hosted a CLE presentation on judicial selection Tuesday afternoon.

The seminar was widely publicized, both because of its unique pricing (it was free -- something that I certainly appreciated) and because it was jointly sponsored by the CBA, the Illinois State Bar Association, the Women's Bar Association of Illinois and the Cook County Bar Association.

There was some lively, if skeptical, conversation on the ISBA Listserv in anticipation of the event. Wrote one commenter, "Call me crazy, but I predict [the seminar] will be an unalloyed endorsement of appointment, because as we all know, in Illinois the political class can be trusted to do the right thing."

Well, there were a few highly partisan advocates of merit selection among the presenters, and former State Senator and State Comptroller Dawn Clark Netsch opened the proceedings with a historical perspective on judicial reform in Illinois generally and on the struggle for merit selection in particular.

Professor Netsch made no secret of her support for merit selection of judges. She made a few observations about just how our present system works. Netsch said that a main argument of election proponents is that the people should not be deprived of their right to vote yet, according to Netsch, 41% of trial judges are associate judges, judges who are essentially appointed, not elected. (Technically, associate judges are elected by the sitting judges in their circuits). Moreover, Netsch said, many other judges are initially appointed to the bench to fill vacancies and have the advantage of incumbency in seeking election.

And while people may say they want to vote for judges, Netsch said, the fact is that many do not. There's a "roll off" or "fall off" of voters as they work down the ballot -- nationwide, she said, as many as one-third of the voters who start a ballot do not vote in judicial elections. In the 2000 Illinois primary, Netsch said, there was a 50% dropoff between the top of the ballot to the judicial races.

Netsch cited her concerns about the way Illinois selects its judges. Money plays and increasing role, she said, in judicial races. Illinois is now the leading state in judicial campaign spending. Also, Netsch said, judicial races are increasingly partisan. As many subsequent speakers would echo, Professor Netsch argued that judicial races should not be the same as elections for the legislature or the county sheriff. Finally, she said, there has been a change in the public perception of the judiciary. Public belief in judicial independence and integrity is dwindling. Merit selection, Netsch said, is needed to restore confidence in courts.

However, the seminar was neither an infomercial nor a pep rally for merit selection.

Two panels followed Professor Netsch's opening remarks. Cook County Commissioner (and the CBA's Springfield lobbyist) Larry Suffredin moderated a group of legislators who addressed judicial selection options from the standpoint of practical politics.

House Majority Leader Barbara Flynn Currie (D-25) was the most vocal advocate of merit selection in this group (though Rep. Elaine Nekritz (D-57) said she supports merit selection in "whatever form") but Rep. Currie emphasized that her support for merit selection over judicial election stems from a belief that the former would better guarantee the independence, impartiality and competence of the judiciary.

State Sen. Kirk Dillard (R-24) voiced skepticism about merit selection proposals, the first of several speakers to question "who picks the pickers?" Every merit selection proposal depends on a nominating commission of some sort. Who would serve on the commission? How would these people be selected? Sen. Dillard agreed there is legitimate concern about the increasing role that money plays in judicial elections. He's supported public financing of judicial elections and would favor proposals requiring lawyers to have 10 years' minimum experience before taking the bench.

State Sen. Kwame Raoul (D-13) acknowledged that no merit selection proposal can "de-politicize" the judicial selection process. Like Sen. Dillard, he would support a minimum experience requirement for lawyers aspiring to the bench. Assistant Senate Majority Leader Don Harmon (D-39) also expressed support for a 10 year minimum experience requirement. Harmon acknowledged that there is wide support for improving the quality of the judiciary -- but broad disagreement as to what a "better" judiciary would look like. Sen. Harmon expressed reservations about merit selection and pointed to the recent election in his home subcircuit (Cook County's 11th Judicial Subcircuit) as an illustration of the election process working well, with the highest rated candidates garnering the most votes.

State Senate Deputy Minority Leader Dale A. Righter (R-55) provided a Downstater's perspective. While he's supported public financing for judicial elections, he's skeptical of any proposal that removes power from the voters. Sen. Righter expressed concern about the 10-year minimum experience level as well. Righter, who hails from Mattoon, pointed out that, in some Downstate counties, there may be only a handful of attorneys. Imposing a 10-year limit, however sensible that may seem in a crowded metropolitan area, may seriously diminish the pool of available judicial candidates in some areas. As for merit selection, Sen. Righter noted that if either an elective or appointive process can be improperly influenced, he and his constituents would rather stick with an elective system. At least we'd have a chance this way, he said.

The second panel (shown above in a photo obtained from the Chicago Daily Law Bulletin website - subscription required) was moderated by Law Bulletin editor Olivia Clarke (who also edits the Chicago Lawyer).

Retired Illinois Appellate Court Justice Gino DiVito was the most enthusiastic proponent of merit selection in this group though he warned seminar attendees that he has an article in an upcoming issue of the Illinois Bar Journal which makes a case for the non-partisan election of judges. This should not be construed as an "abandonment" of his support for merit selection, however.

Current Appellate Court Justice Joy V. Cunningham noted that she has attained judicial office both by appointment and election. She was initially appointed an Associate Judge of the Circuit Court of Cook County, later seeking election to the Appellate Court. She said she was a beneficiary of both systems and can see arguments on both sides of the issue. Personally, though, she said, she comes down on the side of merit selection.

Cook County Circuit Court Judge Michael B. Hyman, a former CBA President, and just elected to the bench in 2008, also expressed his support for merit selection. Proponents of judicial election are laboring under three illusions, Hyman said. First, though judges may be elected, judicial elections should not be conducted like any other election for public office. Second, campaign contributions in judicial races are not like those in any other race: Campaign contributions in judicial races come from a very narrow base of contributors. And the third illusion, Hyman said, is that voters know as much about judicial candidates as any other. He offered a challenge to proponents of judicial election: Stop any random group of people in the street. Judge Hyman was quite positive that the vast majority of these would be able to name one or more judges on American Idol before ever being able to come up with the name of justice of the Illinois Supreme Court.

Retired Appellate Court Justice William Cousins, Jr. argued that judicial election is democratic and results in a more diverse judiciary. He pointed out that our elected bench compares favorably with their appointed counterparts in other states, citing the William H. Rehnquist Award for Judicial Excellence bestowed last year by the National Center for State Courts on Cook County Chief Judge Timothy C. Evans.

John Marshall Law School Professor Ann Lousin suggested that the merit selection vs. judicial election debate will soon be over because, she said, judicial elections as we know them are doomed to extinction within 10 years because of a trio of Supreme Court cases, Republican Party of Minnesota v. White, Caperton v. A.T. Massey Coal Co., and Citizens United v. Federal Election Commission. We'll have to wait a decade to see if Professor Lousin's prediction comes true; in the meantime, the merit selection vs. judicial election debate is likely to continue.

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Additional Law Bulletin coverage: Legislators weigh in on judicial selection (subscription required)