Friday, September 21, 2012

Retention Judges: The default vote is 'yes'

Judicial retention elections seem strange to many voters. The nearly 60 judges up for retention in Cook County this year do not run against anyone; the candidate's name is on the ballot in the form of a question that comes down to this: Should Judge X remain a judge? Or should Judge X look for work elsewhere come December?

If Judge X receives at least a 60% "yes" vote, he or she keeps the job.

Past results suggest that the current class of judges have excellent prospects for success in this retention election; the last time any Cook County judges failed to achieve a 60% yes vote was in 1990, when seven judges were removed (though one was simultaneously elected to the Appellate Court).

But that doesn't mean that judges have no reason to take retention elections seriously. It is a fact that at least two out of 10 voters will mark "no" on every single judge, no matter how qualified. In the 2010 retention election, for example, out of the roughly 70 judges on the retention ballot, only two Circuit Court judges received more than an 80% "yes" vote (Judges Sophia Hall and Carol Kelly, with 'yes' votes of 80.07% and 80.16% respectively).

Thus, the stars of the newspapers' editorials, the individuals rated most highly qualified by all the various bar groups, can still expect to be rejected by 20% or more of the voters. Those inclined to 'throw the rascals out' will vote the retention ballot no matter what. Can we safely assume that the just-say-nay voters will number no more than 20 or 25% of the retention voters? Well, as a lot of people learned first-hand with their IRAs in recent years, past results are not a guarantee of future performance.

But wholesale removal of judges in Cook County would not be in the public's best interests.

We have many very good, hard-working, scholarly judges in Cook County. There will also be some judges on this year's retention ballot who, in the opinion of some bar associations, or some newspapers or community groups, should join the ranks of the unemployed. Usually, there will be some disagreement: Judge X may be rejected by one bar association, but recommended by another. It is up to the voters to educate themselves, in these cases, as to which bar association, or which newspaper editorial board, has the more persuasive view. I will try and report the good and the bad, the agreements and the disagreements, on various retention candidates in this blog. I mean to express no opinion about whether any particular judge should or should not be retained.

But I do submit that the default vote on the judicial retention ballot, in the absence of a good reason to vote otherwise, should be "yes."

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