Thursday, February 19, 2015

But would we feel the same way if we lived in Oregon or Minnesota?

When a person is appointed to a judicial post, is it acceptable or appropriate for that person to thank the Supreme Court, any nominating committee involved, and the elected officials who may have lobbied the Court or a justice's nominating committee on the appointee's behalf?

This allegedly happened recently -- not in a published news story (I checked the Law Bulletin to be sure) -- but on social media (Facebook, according to the account I heard).

I've published some angry comments complaining about political influence in filling judicial vacancies (I've flushed several more because they were fueled by that special mix of outrage and character assassination so popular online these days). But, nestled in the angry comments, published or not, is a question worth asking: If we value judicial independence, and if we support the idea of bipartisan, blue-ribbon nominating committees to assist the justices of the Supreme Court in filling vacancies, shouldn't we be just a tad miffed at the perception that this process is subject to political input and maybe political manipulation? I mean, if even the appointee believes that the process is susceptible to political influence, how can we ever expect the public to see it as legitimate?

I admit to not being particularly shocked that a successful appointee would include politicians in a list of persons to be thanked. After all, that new appointee is going to need the continued help of those politicians in order to hold that seat come primary time. I don't know for a fact that politicians try to secure appointments for their favorites, or whether some do more than others, although I suppose it to be so. I certainly don't know how Politician A lobbies Justice B (or a member of Justice B's committee) on behalf of Candidate C. But I am not so naive to think it never happens. And if I am sometimes envious of those who seem to have multiple committeemen advancing their judicial ambitions, I find it difficult to get upset about it. Isn't that just the way things work? Then again, I've lived in or near Chicago my entire life.

And maybe that's the trouble.

Illinois has a reputation as one of the more corrupt states in the nation. Cook County generally, and Chicago in particular, have contributed substantially (though by no means exclusively) to Illinois' historic reputation. Oregon and Minnesota, however, are perceived as far less corrupt (here's a recent survey, just for example's sake). What would a life-long Oregonian or Minnesotan think about the propriety of a committeeman -- any committeeman -- attempting to influence the appointment of judges by the Supreme Court? Imagine a transplanted Minnesotan on a justice's nominating committee in Illinois fielding a phone call from a committeeman. Would the person favored by that politician be helped or hurt, in the committee member's opinion, by such a call?

We grow up and grow old in a culture of corruption; no matter how upright and scrupulous we may be in our personal dealings, how can our perceptions of how things work -- how things should work -- not be influenced by our environment?

On the other hand -- and this is a sticking point for me -- according to the ARDC, as of October 31, 2013, there were 91,083 lawyers on the Master Roll of Illinois Attorneys. Nearly half of these -- 45,306 -- were in Cook County. There are more than that here now. In a rural county, perhaps, it may be possible to say that Mr. Smith is the best lawyer or that Mrs. Jones would make the best judge. But among so vast a population as we have in Cook County, can we ever really say that this person or that person is the one and only best person for a judicial appointment? I think the truth is that, even in Oregon and Minnesota, no committee, no matter how broadly-based, can take large numbers of applicants and honestly winnow them down to say that this one -- or even these 20 -- are the "best." There have to be other factors besides a good work record and strong peer reviews that a blue ribbon vacancy-filling committee, or a Circuit Court Nominating Committee for that matter, can take into account in anointing persons from an ocean of well-qualified applicants. These days, nominating committees acknowledge that they also consider race, gender, and ethnicity in distinguishing among well-qualified candidates; the goal is to increase public confidence in the judiciary by making the bench more reflective of the community as a whole.

But although a judge may look like some of the people that come before the bench, that judge must still have the skills to communicate effectively and understandably with the non-lawyers in the room in order to be effective. Isn't the ability to attract political support at least an indicator of well-developed public communication skills? Or would I feel differently if I'd grown up in Oregon or Minnesota?

I look forward to polite and professional discussion on this subject -- but I will flush comments that simply attack individuals or besmirch generally the integrity of the judiciary or of those involved in the judicial selection process.


Anonymous said...

Hello Mr. Leyhane, Per your request, I will try to be as polite as possible; but first, a disclosure: I would like to be a Judge, and have tried unsuccessfully for many election cycles to become one. I have been rated by all of the bar associations and found to be qualified or better. I have spent thousands of dollars on failed elections. I have spent countless hours drafting applications for associate, sub-circuit, and countywide vacancies. Time is getting short for me – I am approaching my 57th birthday. Unfortunately, I was cursed with a horrible last name and will never win an election.

With all that being said I will tell you the one aspect of this entire process that irks me the most. It is the conduct of two out of the three Supreme Court Justices of the First District. Let me explain why: Years ago I would be outraged when a particular Justice would appoint a political insider or former law clerk with no courtroom experience to the bench. But to his credit, he did so without the guise of an official public notice of the vacancy, followed by an open application process, followed by vetting by a blue-ribbon committee, followed by months of silence (deliberations?), followed by an announcement of the lucky winner, followed by a press release singing the praises of the newly appointed judge. The Justice made his pick and that was it. He is a Supreme and he is discharging his Constitutional duty in the way he deems fit. Period. Just like the slating process itself, his picks were dictated in a great part by the powers that be in the Cook County Democratic Party. He never tried to fool anyone that they weren’t.

I am no longer outraged by the process of this Justice because it does not try to be anything other than it is. Other Justices are not as completely transparent yet that is exactly how they tout themselves to be to the general public and the Bar. It is my opinion that one Justice in particular markets their process (as I outlined above) as being conducted on a level playing field when this is far from the truth. I find this to be completely deceptive and it really bothers me. I am very close to my home Democratic Committeeman, as most serious judicial candidates are to theirs. More often than not the leading candidate (always well connected) to an appointment is known prior to a vacancy even being announced. Very disheartening. Yet well are asked to truly believe that if you want to get to the bench based upon merit and not politics the appointment process is the way to go, when this is not the case at all.

Now, I realize that you do not want me or anyone to “besmirch generally the integrity of the judiciary” and I am not doing so. This is not a matter of integrity – it is just my honest opinion of the appointment process, which has been formed by my many years of trying and failing and trying and failing. Should successful candidates thank their political sponsors? Absolutely they should. Their sponsors are why they have the ultimate honor of wearing a black robe. They just should not do it on Facebook.

Anonymous said...

Ahh, the elephant in the room. Jack, you know that there are certain things we simply don’t talk about in public. “How judges are made in Cook County” is one of those topics that one discusses (if at all) with one hand over their mouth just in case there are lip readers in the room.

Personally, I was dismayed when I initially read that an appointee thanked on social media those who lobbied the court on her behalf. After the dismay wore off, I was angry. Like the author of this blog and many of its readers, I have diligently applied for vacancies time and time again the past 10 years, and nowhere in the instruction materials did it say, “Final step: have politicians you know call the justices and lobby on your behalf.” I am apparently naïve because I would never dream (until now) of encouraging someone to have what is essentially is an ex parte communication with a justice on a court matter on my behalf. But maybe I’m more stupid than I am naïve. Maybe I wasted the last decade playing by what I thought were the rules, when all along I should have been cozying up to the right politicians to court favor with the justices on my behalf. Just think, had I befriend Mike Madigan or Joe Berrios ten years ago, I’d be halfway to my 20-year county pension right about now.

There is (was) something sacred, in my opinion, about the judiciary. The process, I thought, must be free from political influences. There is something special about the role and duty of judge. It is different than any other job in America. The public, lawyers and litigants must have faith and trust in the judicial system. When a justice touts their so-called “independent, bi-partisan blue ribbon selection committee” in every press release announcing an appointment, when in fact it was phone calls from politicians that secured the deal, it is a disingenuous, shameful farce that demands a lack of trust. Keep in mind; it is more than a temporary appointment. Most appointees go on to being slated by the Democratic Party and beating them is nearly impossible. Those innocuous phone calls lead to well-paid, life-time appointments funded by the taxpayers.

When the recent appointee thanked her lobbying benefactors, the rules about how the game is played were finally published for the rest of us to read. Even after the hullaballoo erupted, the social media post was never deleted, as if almost a taunt to the rule followers -- nary an ounce of shame or embarrassment. As Molly Ivins once said of George Bush, “Born on third base, and acts like he hit a triple.” At the very least we can thank her for her honesty, and can begin courting our own lobbyists for the next round of appointments. At least we all know what the rules are now.

Does anyone have John Cullerton’s phone number?

Anonymous said...

Jack, I do not understand you. As the authors of the two previous posts expressed so well, the process is broken, unfair, and deliberately misleading. Should this not be exposed and brought to light at all costs to protect the integrity of the judiciary? Maybe "attacking certain individuals or besmirching the integrity of the judiciary or those involved in the judicial selection process" is exactly what is needed. Please do not threaten to "flush comments". We are all big girls and boys. Let us enjoy this blog as an open and free forum. I understand you want to be a judge but please quit making rulings on what you deem to be prejudicial comments. A certain Supreme Court Justice and one loud-mouth female Hispanic State Senator and one Hispanic Judge (who was recently removed from her Branch Courtroom) really need to know that the Bar is on to them. Not because of any conjecture found on this blog - but because their newly appointed Judge exposed the how and why she was successful all over Facebook. My God - really think about this: No mention of merit, performance or experience. Just political connections and Hispanic ethnicity.

Jack Leyhane said...

OK, Anon 12:20, let's try and think this through. Do you have any cash in your pocket? Take out a bill and look at it. It's just paper, right? Yet you can take it to the 7-11 and buy something with it. Why? Because people accept that it has a certain value. Maybe not you -- maybe you have converted entirely to bitcoins and, if so, bully for you. But for the rest of us, the thing vital to the continued value of that piece of paper in your hand is a widely shared belief that the piece of paper has value. Stop believing that, and the monetary system falls apart. We revert to barter and banditry.

Now to the judicial system: You want to expose all the flaws of the system, which insofar as you are concerned is irretrievably broken, the appointment process hopelessly political, the judges all ignorant political hacks. You've stopped believing that the system has any value. If your view were to spread, our profession would fall apart and we'd quickly plummet to trial by bribery and then trial by combat.

We can talk about the perils of inflation and deflation and whether the dollar is overvalued against the euro without abandoning belief in the pieces of paper that we carry. We can likewise talk about problems in the judiciary (even in public, Anon 4:17, even without covering our mouths) without abandoning belief in the underlying integrity of the judicial process.

Anon 12:20, you may consider me timid, even cowardly, a prisoner of my (freely admitted) judicial ambitions. (Caution and restraint have served me so well in the 22 years since I first ran for judge.) And, fine, maybe I am a coward.

But there's more to it than that: If I never realize my ambitions (Anon 9:21, I can see the shadows lengthening for me as well) I still have to get my living in the judicial system. We all do. Clients are often skeptical about the legitimacy of the system -- do they really need a lawyer who reenforces their doubts? I say -- and I believe -- that the system as a whole has integrity. Some of the most-politically-connected judges can soar beyond their origins and become faithful servants of the law, just as some of the most partisan advocates can become carefully neutral, honest judges when given the chance. Yes, even good judges have bad days and I've left courtrooms thinking that justice may be blind but that %#@$! judge surely was.

I'm not Pollyanna and I'm not Dr. Pangloss. But I don't believe you can hope to improve the quality and independence of the bench by throwing up your hands and saying the whole thing's a fraud. I believe there's a principle in quantum physics which says that observing a thing changes it. And I think it was Justice Brandeis who said that sunshine is the best disinfectant. Merely by observing, and taking note, we can effect change. We don't have to shout. We don't have to sink the ocean liner, or reverse it. A modest course change can avoid the iceberg ahead.

Jack Leyhane said...

Things that make you go 'hmmmm'

Having written this post about the different perceptions one might have if one were an Illinois native as opposed to an Oregonian, I saw this item yesterday in Sneed's column in the Sun-Times (quoted material follows):

RTA member Bill Coulson, hubby of former GOP state Rep. Beth Coulson, is weighing in on the abrupt resignation of Oregon Gov. John Kitzhaber due to the business dealings of Cylvia Hayes, his fiancee/first lady — which was perceived as a conflict of interest.

“I am saddened and angered by the resignation of my college roommate — John Kitzhaber . . . John was elected four times as governor, yet pressured to resign over acts by his fiancee which would hardly raise an eyebrow in Illinois politics.”

Anonymous said...

Hi Jack, Let me first say that I LOVE this blog. I do not check in here every day because I want to be a Judge. I have an excellent practice and it would be a pay cut for me. I make my living in the courtrooms so I have a vested interest and concern that the selection of our judges is by a process that concentrates on merit, intelligence, experience, and disposition. But unfortunately, I have been around long enough to know that either by election or appointment, it is not.

Elected judges are a crap shoot. Bar ratings mean little to voters. Honestly, they mean little to me as well. CBA says good while ISBA says bad .... who knows what it means. But, it would be nice to think that the Supreme Court Justices are above politics. I know they are not - but it would be nice to think they were.

I am a fan of yours, but I think your response to the third post is way off. I do not think the person is saying the entire judicial system needs to be (using your term) flushed. Just that it is o/k to call it like it is with regard to how the Supreme Court makes appointments. It seems to me that one of the Supreme Court Justices does in fact make politically motivated appointments under the cover of an elaborately concocted process which really has no bearing on the final outcome. That is just hypocritical, and there is nothing wrong in saying so. But your position on all of this is to be like an ostrich and stick your head in the sand and act like the process is legitimate when you know it is not. Then pull your head out of the sand and remark that the system is not that bad if the political hack turns into a decent judge. If the political hack stays a political hack, well just stick your head in the sand again and hope the public does not loose faith in the system. I do not agree with that.

Let me leave you with this. When you start looking for a deep pile of sand to stick your head into, just think of In re Himmel. What is the intent of the Himmel case? Understand? The Supreme Court does not want you to stick your head in the sand. Neither do your readers. (Not to mention you are one good looking and distinguished fella and we want to see you) If something smells - hold your nose and say it smells. Now lets practice. I am going to give you an absolutely outrageous fact pattern that I want you to post. This could never ever really happen. A female Hispanic State Senator (who probably can't even spell the words "qualified" or "Facebook" is upset that no Latinas have been appointed to a judicial vacancy............... Never mind, bad example.

Anonymous said...

Mr. Leyhane, Your response to Anon 12:20 and Anon 9:21 really left me, and I believe many others, with a sick feeling in our stomachs. I was never able to find the perfect words to express the feeling I had with regard to my own desire to become a judge and the realization that it was never going to happen. But you found the words for me: “… timid, even cowardly, prisoner of my freely admitted judicial ambitions”. Until very recently, I lived with that feeling 24/7. But no longer. I am done feeling like a prisoner and this is the reason why:

It is absolutely true that a few weeks ago a new Judge, recently appointed by Justice Mary Jane Theis, publicly thanked on Facebook those who lobbied on her behalf; and to answer your question - I find that totally improper if not downright stupid.
As an attorney, I like to see direct evidence; the smoking gun. Not being privy as an insider to the appointment process, I had no direct evidence up to this point that the process, (at least that of Justice Mary Jane Theis) is fraudulent. But now, I have no doubt that it is. When a new Judge, exercising probably one of the most incredible displays of poor judgement (how incredibly ironic) not only announces her appointment on Facebook (before the official Supreme Court announcement) but also gushes with thanks to those who (in her own words) “lobbied” for her; I have heard all I need to hear. I can no longer delude myself with the notion that the process is anything but fraudulent. It is not fair and transparent. I hope that you, Mr. Leyhane, do not spend another 22 years of your life chasing the black robe. Be a prisoner no more.

Anonymous said...

Hello Jack, Please correct me if I am wrong but this is what I understand of the facts: On Facebook,
Judge Rossana Fernandez, newly appointed by Supreme Court Justice Theis, among other things, announces her appointment and thanks those who lobbied on her behalf. It is surmised that if Judge Fernandez is so compelled to acknowledge
and express gratitude for the lobbying efforts on her behalf; therefore it is proof that these efforts were given at least some consideration in the appointment process.

With that being said, readers of this blog are upset because they feel, and rightfully so, that Justice Theis goes out of her way to promote the fairness and transparency of her process, when in actuality, the opposite is true. I must also agree with
this position. Justice Theis has a very comprehensive written application. Far more comprehensive than the Associate Judge application. Nowhere in the Theis application does it ask the applicant to attach letters of support from elected officials nor does it furnish the phone number to the chambers of Justice Theis and invite phone calls from said officials. By Justice Theis not
requesting in her application that an applicant is to provide a showing of political support it can be presumed that it is not relevant. Besides, how does political support factor into a judicial evaluation process? Many of the judicial evaluation committees of the Bar Groups specifically look for freedom from political influences as a requirement for positive ratings.

So, in my opinion, Judge Fernandez used very poor judgment in posting anything at all on Facebook. She blew the whistle not only on herself but she called into question the legitimacy of the application process by which she was made a judge. Very poor judgment indeed. Just for the sake of argument lets say, however,
that the blue-ribbon bipartisan evaluation committee that Justice Theis hand-picked did not consider any of the political lobbying conducted on behalf of Judge Fernandez. Then what? This raises far more troubling questions in my mind. With all due respect to Judge Fernandez, was she not chosen by the Theis Committee because they felt she was capable of exercising proper judgment, and because she had the necessary maturity, common sense, dignity and reserve associate with judicial office? Giving (and I quote) shout-outs on Facebook to “Grand Avenue” and acknowledging “Latina power sent my way!!! Muuuuuuah” clearly is the behavior and actions of an individual, in my opinion, that is not subtable for judicial office. Thanking those who lobbied on her behalf was far less questionable than her other Facebook postings. If Justice Theis truly relies on her selection committee to vet candidates; she has reason to be highly disappointed and embarrassed.

Jack Leyhane said...

See, this is what I didn't want. This discussion has turned into a venting session about one particular appointment. Let me be clear on this: I hope that newly-appointed Judge Fernandez has a useful and successful judicial career. That appointment has been made and I wish her well.

I don't know how so many people "know" with such certitude every Facebook posting that any individual makes unless they are "friends" (Facebook's term, not mine) with the person in question. I understand that people can make their Facebook pages open to the world at large, but -- except for a campaign page or a business promotion page -- no one really does this, do they? Meanwhile, perhaps the old adage should be updated: Keep your friends close and your enemies closer, but don't give your enemies "friend" status on Facebook. And don't say anything online, even to "friends," that you couldn't have read back to you in open court or from the pulpit of your church, synagogue, or mosque.

Now, let's move forward. We elect judges in this state, but reformers are always assuring us that "merit selection" is better. I've expressed doubts on this score before, but I am always open to persuasion.

People are fixating on Justice Theis's committee because she has publicized it -- but most of the justices, here in Cook County and Downstate, have committees in place to assist in making appointment recommendations -- and in these committees we have a template for a possible merit selection process of the future. How can we make the process better, more open, more fair? -- can we dispel perceptions of political influence? (should we? or should we openly acknowledge their existence and provide credit where credit is due?) -- how can we help the court system improve, something that will be a benefit for all of us who practice law whether we aspire to the bench or not?

Let's talk about that. OK?