Saturday, January 29, 2011

Judicial election reform in the wake of the Emanuel case

Rahm Emanuel said, "You never let a serious crisis go to waste," and, whether one calls it irony or karma, the now-resolved crisis over Mr. Emanuel's ballot status has provided an opportunity for critics of the way we choose judges in Illinois to once again pitch merit selection as an alternative.

While waiting for Thursday's Supreme Court decision, the Tribune announced that it was shocked, shocked to find out that politics was involved in the selection of judges.

From David Kidwell's article, posted on the evening of January 24:
Longtime Appellate Court Judges Thomas E. Hoffman and Shelvin Louise Marie Hall — who on Monday ruled that Emanuel's stay in Washington precludes him from running for mayor this year — were both judicial candidates slated for election by the Cook County Democratic Party judicial slating committee chaired by Ald. Edward Burke, 14th.

Burke, one of Chicago's most powerful politicians, holds huge sway in the election of judges at every level, including the Illinois Supreme Court, where his wife, Anne, sits as a justice and where the Emanuel ballot question is now headed for a final decision.
An article by Kidwell and Rick Pearson, posted on the evening of January 26, was headlined "Will Emanuel ruling rise above politics?" The article carried the breathless subhead, "The 4 Democrats, 3 Republicans on state Supreme Court all have political ties." (Who knew?) And from the article:
"This is not something that is unique to these judges," said Malcolm Rich, executive director of the Chicago Council of Lawyers, a group that pushes for merit selection. "For all judges, there is a strong likelihood that once you are slated by the political organization, you will become a judge."

"Does that political influence find its way into decisions? I don't know. We may never know," Rich said. "But as long as we live in the political reality under which the election of judges operates, we will never be able to escape these kinds of inherent conflicts."
In his blog for Crain's Chicago Business, Greg Hinz wrote:
[T]he amount of chatter surrounding this case ought to make reasonable folks wonder whether electing judges in highly partisan, extremely expensive races truly serves the interest of justice.

Put a different way, our justice system will work only if people are convinced it's not gamed.

I don't know if appointment of judges — a.k.a. "merit selection" — is the way out. It, too, has its own flaws.

But it really is time to take a look to see if we can devise a better means to select at least the high court. Illinois' justice system ducked a bullet this time. But surely others will be fired in years to come.
If there's really a serious groundswell for reform of Illinois judicial election system, retired Illinois Appellate Court Justice Gino DiVito has suggested a practical, achievable reform: In December's Illinois Bar Journal, Justice DiVito suggested (ISBA membership required) that Illinois make judicial elections non-partisan.

Justice DiVito isn't as enthusiastic about his idea as I am (he's a dedicated proponent of merit selection) but I think this proposal has (*ahem*) merit:
Every registered voter, regardless of party affiliation or lack of it, would have access to a judicial ballot and would be eligible to vote in the judicial election. Thus, Democrats, Republicans, and members of any other political party could cast votes in the separate judicial election held concurrently with the primary election.

Those who choose not to declare political party affiliation - independent voters - also could vote in such elections. Because any registered voter could vote, election by a fraction of one party's voters would end.
As Justice DiVito notes, such a reform would require a constitutional amendment (he suggests language for such an amendment in the Bar Journal article).

Amending the constitution is a difficult process. But it's a struggle worth undertaking. Why should Republican voters in Cook County be almost entirely disenfranchised when it comes to selecting judges? Why should Democratic voters in DuPage or most other Illinois counties be similarly disenfranchised?

And, truth to tell, a lot of voters skip the primaries. But most of the judicial races are decided in the primaries -- and voters who turn out only for general elections are also shut out of the process of judicial selection. Under Justice DiVito's proposal, general elections could again become relevant:
Only a candidate receiving more than 50 percent of the vote [in the non-partisan primary] would be elected to judicial office. This would eliminate the current phenomenon of electing candidates with a small percentage of the votes from a single dominant political party, a frequent occurrence in current primary elections with numerous candidates.

Under the proposal, if no candidate reaches the required percentage, a run-off election between the two top vote-getters would be held in the November general election - without party designation. This should focus attention on the relative merits of the two candidates rather than their party affiliation.
Neither Justice DiVito's proposal nor any merit selection scheme (nor any scheme involving human beings) will entirely remove political considerations from judicial selection. Party endorsements would still be very important, but at least more voters would have a say concerning the worthiness of the dominant party's choice. That alone might be an important reform.

Perhaps a crisis involving Rahm Emanuel's hopes to run in a non-partisan mayoral primary create an opportunity for non-partisan judicial primaries in the future.


Albert said...

Any sort of significant change to our selection system needs to be based on real-world evidence that a different system would be an improvement. (Such as by comparison across systems in different jurisdictions.) Unfortunately that evidence hasn’t been produced—not yet. And the legal community has always been too content to simply offer theoretical arguments without supporting evidence. The electorate that needs to approve a change isn’t likely to be convinced by theory.

Jack Leyhane said...

As always, you have a valid point and I'm working on a post in response.