Chicago Council of Lawyers refines position on recall of judges

The Chicago Council of Lawyers submitted this letter to the Chicago Daily Law Bulletin. The letter appeared in that paper's November 9 edition and is reprinted here with the permission of CCL Executive Director Malcolm C. Rich:

To editor:

The Illinois Supreme Court's recent disclosure that it will not "recall" to the Illinois bench judges who ran unsuccessfully for election to the bench has prompted the Chicago Council of Lawyers to re-examine the court's practices in this area, with a view toward recommending a process best designed to result in the appointment of quality judges. The Council of Lawyers has not considered the court's exercise of its constitutional recall power since 1993 when, unlike today, there were no selection commissions and other checks on unfettered discretion. Upon re-examination, the council is making the following recommendations to the court and the public:

• The council supports the appointment of quality judges to the bench with appropriate safeguards against political influence.

• We have had our doubts on the court's authority to make recall appointments of anyone but judges who retire in a traditional sense, but, of course, in some sense the Illinois Supreme Court can be the final arbiter of its own authority, if that authority can be supported by the court's own constitutional analysis. If its own analysis reasonably leads it to conclude that it has this power, we believe it should still make improvements with respect to appointments generally to ensure it enhances judicial merit and independence:

— Whether or not the court recalls nonelected judges, the court should state publicly a new, more transparent process of both appointing judges and recalling them.

— The court should post publicly the judicial vacancies that are to be filled and invite lawyers to submit applications.

— All Supreme Court justices should employ selection commissions and should disclose publicly the criteria upon which the commissions would make their recommendations for appointment.

— The court and the commissions should also consult the bar associations for their evaluation of applicants for appointment.

• The council has long opposed the selection of judges by popular election for many reasons, including the influence of party politics and money in judicial campaigns as well as the difficulty in providing the voting public with enough information about a typically large number of relatively obscure candidates. The council has never viewed judicial elections as a reliable means of putting quality judges on the bench and, for the same reasons, the council does not view these elections as a reliable way of evaluating the abilities of judicial candidates who, for whatever reason, did not prevail in a judicial election. Some members of the public perceive a problem with the court recalling judges that were defeated by the voters. While the council is not certain that there should be such a public perception, the council's proposals for additional transparency in the court's recall of nonelected judges should help address that problem. Moreover, with more than one-third of elected judges beginning their judicial career through appointment, additional transparency in the appointment process is all the more important. The public deserves to know the process used to both appoint and recall judges.

The council encourages the court to consider and adopt the above recommendations with respect to any process or practice the court employs to appoint or recall judges to the Illinois bench.

Respectfully submitted,

Gabriel A. Fuentes
President, Chicago Council of Lawyers
and Malcolm C. Rich
Executive Director, Chicago Council of Lawyers