Sunday, April 17, 2011

Looking more at the Madigan judicial recommendations

The story in this weekend's Chicago Tribune, Madigan letters offer glimpse of clout in Cook County judge selection, will be seen by some as further evidence of systemic corruption or, at least, wholly undue political influence on our judiciary.

But is it?

The article, by Tribune reporters Jeff Coen and Todd Lighty, 'reveals' that the Michael Madigan, the Speaker of the Illinois House, has sent letters to judges advising of his preferences during recent associate judge selections. (Associate judges are elected by sitting circuit judges from a list of finalists put together by a committee of circuit court judges. The graphic below, copied from today's Tribune, is intended to illustrate the process.)

(Click to Enlarge)

The 'revelation' that a prominent public figure would have and express opinions about who should attain the bench is about as newsworthy as a revelation that the Sun rises in the east and sets in the west. Indeed, the Tribune article notes that, in addition to Madigan, "[Ald. Edward] Burke, former state Sen. President Emil Jones, D-Chicago, and a variety of other local politicians also promote candidates for the associate judge spots."

In fact, the very first thing that happens after application process closes, at least in recent years, is that the Cook County Chief Judge's office publishes the names of all applicants and solicits comments from the public. Non-lawyers reading this post may be surprised to learn this; most lawyers will be familiar with notices in this regard published every day for at least a couple of weeks in the Chicago Daily Law Bulletin (I can't recall, at this moment, how long the notices usually run). The Chicago Tribune or Sun-Times could publish this list as well but -- to my knowledge -- neither has.

In any event, the Tribune's angle can not be that Mr. Madigan makes recommendations; recommendations can be made by anyone. A closer reading of the Tribune article suggests that the concern is, rather, that Mr. Madigan makes so many recommendations and that these are so successful.

According to the Tribune, "Since 2003, Madigan has recommended 37 lawyers to become associate judges, and 25 were selected outright." Roughly two out of three people recommended by Mr. Madigan, therefore, were appointed as associate judges and, according to the Tribune, others made it to the bench through appointments. (In Illinois, the Supreme Court can fill vacancies by interim appointment. Sometimes the persons appointed will later be elected to these vacancies; sometimes not.)

That so many persons attain the bench after receiving the Speaker's recommendation seems extraordinary. However, in recommendations, as in everything else in this world, timing is everything.

The Tribune obtained copies of Mr. Madigan's letters from 2003, 2005, 2007, 2008 and 2009. The 2007 letter is undated, but the 2008 letter is dated August 18; the 2009 letter is dated August 24.

In other words, these letters -- at least -- were written after the major winnowing of the applicants had already been accomplished. For example, as the Tribune article notes, there are now 240 persons hoping to be selected to 10 associate judge positions now open (full disclosure: I am one of these 240). Assuming the number of vacancies does not increase while the evaluation process is completed, this pool will be reduced to only 20 "finalists." (Two finalists must be certified for each by a nominating committee composed of Cook County Circuit Court judges; see, Supreme Court Rule 39.)

If one makes recommendations only from the finalists' pool, the odds of making successful recommendations are pretty good: After all, half of those on the finalists' list will be chosen.

Nine associate judges were chosen in mid-September 2008. The August 18, 2008 letter was, therefore, issued after the finalists' list appeared. The 2009 finalist list came out on August 20; ten associate judges were chosen on September 25. Mr. Madigan's letter was dated August 24.

Getting a little further inside the numbers, only one of Mr. Madigan's three recommendations was elected an associate judge in 2009 (although another was subsequently appointed by the Supreme Court to a circuit vacancy). On the other hand, six of the eight persons named in the Speaker's 2008 letter are now associate judges, while another was elected as an associate judge in 2008 and then won election (that same year) as a full circuit judge from the 13th subcircuit. But two of these successful 2008 aspirants were also named in the Speaker's 2007 letter; the Speaker's recommendation did not carry the day for them on that occasion.

In other words, a recommendation from the Speaker is obviously something that boosts the chances of a judicial hopeful, but it is not dispositive. And a lot of judicial hopefuls don't achieve their ambition the first time -- or even the second, third or fourth time -- even with apparently powerful sponsors. (I'd prefer not to have to total up how many times I've applied.)

Persons concerned about undue political influence in the associate judge selection process should keep in mind that new judges are chosen by Cook County circuit judges voting by secret ballot. Politicians, even the most powerful ones, have limited influence over circuit court judges. An offended politician can not slate someone to run against a circuit judge at the next election. (Once elected, circuit judges only have to face a retention ballot every six years.) I therefore see nothing intrinsically wrong in either desiring or obtaining this sort of recommendation.


Albert said...

This is a very good point, about the timing of the letters. If all 37 of the recommendations came after the finalists had been chosen, then the recommendations appear to have had little or no effect.

To me the story here is why the number of finalists for 82 vacancies was, according to the article, "more than 135" rather than exactly 164. Is this an error by the Tribune, or were some of the pools of finalists not as large as they were supposed to be?

Jack Leyhane said...

I believe I can answer your question: There was no error by the newspaper and all pools were as large as required by Rule 39. However, some people were finalists more than once. The total number of finalists would be exactly 164 -- assuming that 82 vacancies have been filled over the years examined, but finalists who were disappointed one year, who reapplied later and made the finalists' list again would account for the difference.

Albert said...

Okay, that would explain it. So if 50 percent of finalists are chosen, and Madigan scored on 25 of 37...that would be considered a “statistically significant” advantage (barely) but it doesn’t prove that his recommendation is the cause of the selections. There are other possible explanations that the article doesn’t rule out.

It would be very revealing to compare the qualifications of the candidates he did and did not recommend. If he’s supporting less qualified candidates, then you’d have a page 1 story. But he may have chosen candidates who are more qualified, and the qualifications are the reason for the selections. No question the guy has made himself an easy target over the years, but the article by itself doesn’t present enough evidence to conclusively prove that his recommendations are a problem.