Lots of ideas about judicial reform at BGA Idea Forum

From L to R: BGA President and CEO Andy Shaw, ISBA President John Thies,
former Circuit Court Judge and State Rep. Anthony Young; ICPAR
Executive Director Brian Gladstein, and former Illinois
Appellate Court Justice Gino L. DiVito

Tuesday night's Better Government Association Idea Forum was entitled, "Improving Judicial Selection: Are we ready for reform?" and, from the title alone, I attended with the full expectation that this would be a meeting of the Saved preaching the gospel of merit selection to the Already Converted.

I was pleasantly surprised to find instead a frank and lively debate.

Yes, ISBA President John Thies was on the panel and the ISBA has long been a supporter of judicial merit selection proposals, as President Thies noted in his opening remarks. And retired Appellate Court Justice Gino DiVito has long been an advocate of merit selection. But retired Cook County Circuit Court Judge Anthony Young, speaking for himself and, he said, for the Cook County Bar Association, was on the dais supporting the continued election of Illinois judges, especially from the subcircuits.

There is no need to reform a process that isn't broken, Young said repeatedly. Judicial reform was achieved with the creation of subcircuits, Young said. A former state legislator, Young credits the subcircuit system with increasing diversity on the bench, providing many female, African-American, and openly gay judges. He argued that the creation of Cook County's subcircuits was a legislative reform and response to the scandals of Operation Greylord. Young objected to the notion that subcircuit elections have produced judges of inferior quality or ability, noting that many of the highest-ranking judges in the Circuit Court of Cook County were elected from subcircuits.

Justice DiVito agreed that the Cook County bench is both strong and diverse, but "we have outstanding judges despite the way we select judges, not because of it." People guess when they vote for judges, DiVito said. The media, he said, is incapable of informing voters on judicial candidates' qualifications and the voters are not engaged. Opponents of merit selection, DiVito said, say they are concerned about giving people the right to choose their judges, but the right to choose is "illusory" where there are too many candidates and voters are making choices among them based on their names alone.

Thies and DiVito said Illinois should adopt a merit selection process that depends on bi-partisan nominating commissions to minimize political influence on the process. In one proposed merit selection model, the Attorney General would appoint half the members of the nominating commission in each circuit (attorneys or lay persons) while the next highest-ranking statewide official elected from the other party would choose the other half of the members. Of course, in some years, there may be constitutional officers from only one political party; some arrangement would have to be made, in that case, to allow equal participation by the minority party. The commissions would certify three names to the appointing authority, whether that might be the Governor or the Supreme Court. Either way, the appointment would have to be made from among the three names certified.

Thies acknowledged that such a system could be blended with continued elections of subcircuit judges if that were a matter of political necessity. Young insisted that subcircuits are small enough that a candidate can really go door-to-door, bypassing the political power structure and still winning election. DiVito was skeptical of this notion.

Young suggested that nominating commissions might be able to pick out the best lawyers, but the best lawyers do not always make the best judges, just as the best baseball players do not always make the best managers. Michael Jordan, he added, was the greatest basketball player of all time, but Jordan has had great difficulty in picking talented players when he moved into ownership. Moreover, Young said, he was concerned that the selection of the nominating commissions would be highly political, and insulated from public input.

While Young felt that judicial elections should be continued at all levels, DiVito pointed out that, in essence, half our serving judges in Illinois are already appointed. He referred, he said, to the associate judges, who are elected by the full judges in each circuit. Many of these, DiVito said, are "among the best judges we have." Moreover, he pointed out, many judges who win election first attain the bench by Supreme Court appointment to a vacancy. DiVito said appointed judges have an advantage in the electoral process (FWIW readers know that any such 'advantage' is inconsistent at best).

Contributions and recusal standards

Host and moderator Andy Shaw, the BGA's President and CEO, steered the discussion into areas of financial reform and Brian Gladstein, the Executive Director of the Illinois Campaign for Political Reform, provided a truly jaw-dropping statistic.

In a recent nationwide survey of sitting judges, Gladstein said, fully 35% of the judges felt that their colleagues' decisions were influenced by contributions received.

Pause for Personal Opinion Clearly Labeled as Such: It's one thing if sore losers feel that way -- at least 50% of the parties in any given case will go away unhappy; such is the nature of litigation -- but if judges themselves begin to believe that their colleagues have indeed been corrupted by campaign contributions, we have a serious problem in this country.

Citizens United v. Federal Election Commission was singled out by the panelists as a major obstacle to meaningful campaign finance reform. Thies noted, however, that the ISBA is working on a proposed change to the Supreme Court Rules whereby a judge's receipt of lawful campaign contributions, when combined with other factors, might result in mandatory recusal in a given case.

Thies explained that some judicial candidates are very careful to avoid finding out who has contributed to their campaigns, thereby avoiding any possible influence. Other candidates, just as ethical, want to know about every contributor, so that the campaign can return any contributions from any questionable source. Young said he did not believe changes in campaign financing laws were necessary because the men and women who run for the bench are honest and upstanding persons; on the other hand, he could support a public financing provision at the Supreme Court level to avoid the appearance of impropriety.

Gladstein noted that in other jurisdictions -- he singled out New York -- public financing supplements or matches private donations in judicial campaigns, sometimes on as much as a 6:1 basis. DiVito said that the very fact that judicial candidates must raise money is a strong argument against the current electoral system.

The evening concluded with Shaw asking the panelists how the present system may be improved. Discussion focused on different ways of getting information about candidates to the public. FWIW was not mentioned.
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Related Reading:

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

Judicial election reform in the wake of the Emanuel case;

ICJL joins call for judicial election reform.