Saturday, October 18, 2014

Retention Judges: The default vote is "yes"

Judicial retention elections seem strange to many voters. The over 70 Circuit Court judges (and one elected Justice of the Appellate Court) that are 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 2012 retention election, for example, out of the roughly 60 jurists on the retention ballot, no one received an 80% "yes" vote. Appellate Court Justice James Fitzgerald Smith received a 79.81% "yes" vote and four Circuit Court judges -- Patricia Banks, Maureen Elizabeth Connors (who was simultaneously elected to the Appellate Court in 2012), Mary Colleen Roberts, and Diane M. Shelley received "yes" votes from more than 79% of the voters.

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? 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. All of the judges on the 2014 retention ballot are recommended by some of the bar associations that screen judicial candidates; the vast majority have been recommended by each each and every one of the bar groups. Here's a linked list of the posts I've put up about the bar association ratings:
For more information about Cook County judges on the retention ballot, see the 2014 Cook County Retention Judges Website.

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."


Anonymous said...

I'm an attorney and I vote no for every judge.

Jack Leyhane said...

If your view ever became the majority view, assuming that you really are a lawyer, and sometimes have occasion to appear in court, you would soon regret having advocated this position.

Anonymous said...

I am an attorney and I do appear in court. I agree with you if it became the majority view (or 40.000001%) overnight it would not be good, but if we gradually got to 40% no all the time, judges would be too scared of retention and run in primaries. First-time appointees do it. I believe it would keep judges from being lazy and staying on the bench well psst their prime

Jack Leyhane said...

That's not how our system works, Anon. Judges don't get to run for retention because no one wants to run against them. Once elected, they no longer have to run in a contested primary. They may hold their seats until death or retirement as long as they are retained. In other words, they are in for life on good behavior, where good behavior is determined not only by the Courts Commission, but by the voters in retention elections.

Why in the world would we want to do away with that system in favor of making judges defend their seats in contested primaries (as happens in some of our neighboring states)? Judges would never be removed from politics. You may scoff and say that judges are political now, but forcing judges into reelection campaigns would be putting them smack in the middle of the maelstrom of modern hyper-partisan politics.

Judicial elections are different from other elections -- so far -- and judges -- for the most part -- aren't career politicians. Yet they are forced to go -- once -- through public election process. That's defensible, and consistent with good republican (small-r) principles. Anything beyond that, though, would fundamentally change the character of judicial elections, and probably of judges, too. And I promise you wouldn't like the change.

As for judges staying on the bench past their prime, the much-reviled pensions that judges earn helps ease some out. The rise of post-judicial career opportunities, particularly in ADR, have pulled some very good judges out of the courtroom -- in some cases prematurely, I think -- but in any event these judges never have an opportunity to grow "lazy" in their judicial roles. Retention elections can help weed out poor-performing judges who don't get the hint from their colleagues or the bar groups that they are not making the grade -- but only if there is a consensus that Judge X is a substandard performer. And that, I submit, is as it should be.