Sunday, May 15, 2016

Should a judicial hopeful's politics be taken into account when passing on his or her qualifications?

You may have missed this article a few Sundays ago when it appeared in the Chicago Sun-Times: Rough Road To Judgeship For Top Aide To Anita Alvarez, by Robert Herguth. (The link is to the BGA website, where the article was also published.)

I don't know Daniel Kirk; I think I have been introduced to him, but I've never worked with him, or even seen him in court. I don't know if he'd be a good judge or a bad one.

I learned, from reading Mr. Herguth's article, that Mr. Kirk has served as First Assistant State’s Attorney, as Anita Alvarez’s chief of staff, and as Alvarez's campaign chairman.

I also learned, from Herguth's article, that Mr. Kirk had been rated "recommended" by the Cook County Bar Association in his pursuit of an associate judgeship -- and that the rating was thereafter pulled. Reversed. This is not a situation where a prior favorable evaluation had grown stale because of the passage of time and a new evaluation committee disagreed with its predecessor; rather, this is a situation where Mr. Kirk was first approved... and then he wasn't.

Herguth mentioned that "Alvarez’s lackluster history of prosecuting police for excessive force and other alleged misconduct," had made her quite unpopular in the African American community, particularly after the release of the Laquan McDonald video.

So... was Kirk's close association with Alvarez the reason his favorable rating got pulled? Herguth asked the question:
Arlene Coleman, president of the Cook County Bar Association, would only say “there were concerns” expressed by her group’s judicial evaluation committee about Kirk, so his rating was revisited by her board and, ultimately, downgraded.

“I’m not going to say what all those concerns were,” Coleman said. “I don’t think we have to give a reason why, we have a right to change our minds.”

Either way, she acknowledged the switch was unusual and added that Kirk has appealed his “not recommended” label.
If I get word about the disposition of the appeal, I will advise.

Meanwhile, in the absence of an explanation, speculation abounds. And it's difficult not to see a political motivation in this ratings switch.

Now, FWIW readers who have not been directly involved in judicial evaluations, either as candidates or evaluators, may be shrugging their shoulders here. After all, getting on the bench, whether by election or by appointment, is, after all, an inherently political process, right? Once Anita Alvarez's office became a focal point of community protest and media criticism, didn't it just make good political sense that the county's oldest and largest African-American bar group would reverse an initial favorable recommendation for one of Alverez's top lieutenants? Alvarez's reelection bid was supported by only 28.68% of the electorate countywide -- but she proved really unpopular among African-American voters. For example, in Chicago's 21st Ward, Alvarez received only 7.47% of the vote. In the 8th Ward, she received only 7.52% of the vote, 7.54% of the vote in the 6th Ward.

The problem, however, is that politics isn't generally supposed to factor into judicial evaluations. The Cook County Bar Association website, for example, says, "judicial candidates and sitting judges are evaluated on litigation and professional experience, legal knowledge and ability, sensitivity to diversity and bias, judicial temperament, diligence, punctuality, professional conduct, health and age, impartiality, character and integrity." No mention of political considerations there.

The Chicago Council of Lawyers says expressly, "The Council does not evaluate candidates based on their substantive views of political or social issues. Nor do we take into account the particular race in which a candidate is running or the candidates against whom a candidate is running."

I've often argued that an individual's political leanings are particularly unimportant for a person seeking a judicial position. U.S. Supreme Court Chief Justice John Roberts famously analogized a judge's role to that of a baseball umpire, merely calling the balls and strikes. Such an analogy seems particularly inappropriate for a justice of the highest court in the land -- but it does seem pretty descriptive of the role of a trial court judge. If both are faithful to their oaths of office, a Trotskyite judge and a hidebound reactionary judge should usually arrive at the same conclusion when applying the law to a given set of facts (one may be happier about the outcome than the other, depending on the case).

Whether a judge has voted for Republican or Democratic candidates should not matter when evaluating whether Mrs. Jones ran the red light. On the other hand, a judge who is such a political ideologue that she automatically assumes all police officers are liars -- or, contrariwise, is certain that police officers never lie -- would be a terrible judge, right?


FWIW readers: Do you think bar associations should take a judicial hopeful's political opinions or associations into account when passing on his or her qualifications? If so, how? If not... how can bar association JECs avoid considering a candidate's politics?


Anonymous said...

I think the premise of your question is wrong. It is not Kirk's politics that are affecting his rating, but rather the politics of the bar association that dinged him, and as you correctly noted, after he had been previously been found qualified/recommended.

If not-for-profit, 501(c)(3) bar associations are going to get into the judicial evaluation business, than it is incumbent that they not use politics -- their own or the judicial candidate's -- as a factor in the evaluation.

The Kirk issue raises another important question, and that is whether it is fair to assess a judicial candidate on the actions of their former boss. Why is Kirk downgraded for working for Alvarez, but other prior ASA's under her administration were not. If bar associations deem judicial candidates not qualified or not recommended based upon the perceived actions of that person's former boss, there would be a lot of highly skilled and capable candidates who worked under myriad indicted politicians who would be found not qualified by association, and that is unfair.

Public defenders, by the very nature of their work, vigorously represent many bad individuals who committed heinous crimes. Large, silk stocking law firms have defended mass polluters, tobacco, gun, and oil companies. No one questions the abilities of these lawyers seeking the bench.

I'm not defending Kirk or the policies of Anita Alvarez, but certain bar associations need to ask themselves about their motivations and whether their actions fall in line with their choice to be a 501(c)(3)organizations. If we expect our judges to avoid their own political biases on the bench, why is it fair for allegedly politically neutral bar associations to use politics as a litmus test of whether a candidate is qualified/recommended.

There are reasons why judicial evaluation applications do not ask pointed, political questions seeking one's position on abortion, capital punishment, gun rights, gay rights or the rights of the undocumented, and that is because we hope that a judge's personal belief or desire will not interfere with his or her duty to uphold the constitution and follow the law.

Like judges or potential jurors, bar associations should come clean and recuse themselves when they believe they cannot be fair or unbiased, and that includes when they have close relationships with candidates (such as former officers of those bar associations) whom they almost always find HQ or HR.

Anonymous said...

Excuse me, where in your article does it say that this person's politics was a factor? Maybe it was coincidental. Is it because he's white and a black association determined he was not qualified? Just because his boss lost the election and the black community did not support her does not justify you appearing to make this political. Maybe it was more and you are not privy to it. Plus when I read the article, it seems that there is nothing to prevent him from running for judge if he wants to do so. So, what is your point? I just read that one bar association in 2010 reversed it's rating on a sitting judge during retention. Justify that all you want under the guise of candor, judgment, misstatements, etc. In other words, this 'switch' as you call it has happened before with at least two other bars.

Anonymous said...

Again, I still think there are too many assumptions being drawn here. Did the article specifically state that this was politically motivated? The election was over from what I gather. Again, do not, please do not think for one moment that every move that is made by black people or black organizations has a political agenda. From my reading of the article, this man was not running for anything. Although Alvarez is his boss, she's the boss of everybody in that office. So if any of them are not rated to someone's satisfaction, is that politically motivated too? Are you trying to cause a rift? I went back and this article was written around Apr 24th and now you're digging around looking for a story unless of course someone else put a birdie on your shoulder. I got a question for you--can you blog about Judge Patrick T. Murphy's so called "leaked " email and ask if that is politically motivated? BTW. I am educated, black, female, I vote, and I read. I will agree to strongly disagree with you and will see if you publish my comments.

Jack Leyhane said...

Couple of points here. Let me start with Anon 3:35:

Are you trying to cause a rift?

No, I'm trying to start a discussion about whether judicial candidate evaluations, or at least some evaluators, have political dimensions, even if not recognized by the bar groups or individuals allowed -- and, if so, how do we (or should we) guard against this?

Although Alvarez is his [Kirk's] boss, she's the boss of everybody in that office. So if any of them are not rated to someone's satisfaction, is that politically motivated too?

Anon 11:01 raised a similar point:

The Kirk issue raises another important question, and that is whether it is fair to assess a judicial candidate on the actions of their former boss.

My post really was not about Mr. Kirk. But I can certainly see a valid distinction between someone who is a Shakman-exempt top deputy and campaign official and other ASAs, even senior ones, in that office. In the former case, the deputy can be more fairly associated with unpopular policies or procedures; he can be fairly presumed to have had at least some input.

I totally agree with Anon 11:01, however, that, in most cases, and maybe even in all cases, we should not tarnish the applicant or candidate by the nature of the cases he or she handles or the clients he or she represents.

But my post is not about Mr. Kirk's case in particular. It is about whether evaluations generally have, or should have, a political component.

Back to Anon 3:35:

I went back and this article was written around Apr 24th and now you're digging around looking for a story unless of course someone else put a birdie on your shoulder. I got a question for you--can you blog about Judge Patrick T. Murphy's so called "leaked " email and ask if that is politically motivated?

This is a part-time gig. I get to things when I can -- but I have a day job to do. I saw this story on the 24th but walked around with it for three weeks, trying to figure out how to say what I wanted to say carefully -- because I'm not out to create rifts or stir up controversy for its own sake -- but work and life got in the way of blogging.

As for the Murphy story, that's in my briefcase, too.

There are a lot of stories I'd like to get to, but I can only do what I can do.

* * * * *

I hope the discussion can continue.

Anonymous said...

I don't think evaluations should have any political agenda. Certainly not. No potential judge or sitting should have to answer political hotbed questions or benign ones either. But some things seem to be unavoidable. Whenever I read your blog there are times where people are put in judicial seats by political heavyweights. Yet the ordinary person (and I think those people who are on the panels you speak of are ordinary people too but with law degrees) is expected to just ignore or pretend that the politics does not exist. Yet, I believe they are honest, mindful panelists. If a person makes a comment that is unpopular or engages in some activity or makes a ruling as a sitting judge that is unpopular then it is possible that the person can get negative feedback from those panelists rating him/her. Is that political? I don't necessarily think so. I give commonsense, people the benefit of the doubt and I believe that 99% of the panelists that rate candidates keep politics out of their evaluation. I have seen your posts where others think the 'minority' bars have agendas. Well, somebody needs to mind the store. Otherwise women, LGBT's and other persons of color would be thrown to the curb. I say let this man, Kirk, take his case to the people and if they want him, they can vote or not vote for him. But I think the larger question as I earlier alluded to is this: why is this black organization is being called out for potentially derailing this man's career? I have gone back over the years and saw a lot of the CBA and CCL negative ratings on a lot of people, especially black people trying to get on or stay on the bench and therefore, in my humble opinion, these bars have derailed some careers too. Because from my understanding and reading these matters over the years no one gets an appointment if the CBA or CCL say no. Now let's see whose court the ball rolls into.

Anonymous said...

Mr. Leyhane, I do not believe that your post was intended to cause a "rift" as a comment suggested. But rather, it thoughtfully raises an important question. Sadly, in our ultra politically correct society certain questions and issues can not even be raised without offending the sensibilities of some. As an attorney of almost 30 years of experience practicing in Cook County and as someone who has gone through as a candidate my fair share of bar association judicial evaluation committees; I believe that political affiliations and associations should have no consideration in the evaluation process.

From an outsider looking in - it clearly looks as if the CCBA punished Mr. Kirk for who he is employed by. Furthermore, when the bar president defends her associations actions with vague statements such as "there were concerns" and "I'm not going to say what all those concerns were" and "I don't think we have to give a reason why, we have a right to change our minds"; the motivation behind said actions "SHOULD" be questioned.

Interestingly, the CCBA was apparently not the least bit concerned when a countywide judicial candidate, an appointed judge, who happened to be African-American, was featured in a WGN investigation which alleged, among other things, that he failed to disclose to the Illinois Supreme Court prior criminal and civil matters in which he was a defendant. In the last year or so I have received several emails from the CCBA whereby they have released statements which have condemned the actions of non African-American individuals. I have yet to have ever received a statement from the CCBA condemning the actions of an African-American. Why is that?

Kirk's boss has been criticized for her selective prosecution against police officers who have abused and killed African-Americans; and I do believe that the CCBA has taken out their frustration, anger, pain, and sadness against Mr. Kirk. Organizations, such as the CCBA, which are rightfully sensitive to discriminatory behavior of others need to be vigilant regarding their own discriminatory actions.

Anonymous said...

This is getting good. I want to know about the Judge Patrick T. Murphy email?

Anonymous said...

Here is another interesting question. If candidate X is running in the Democratic Party and his public voter records show that he has voted in the Republican Party primaries, would it be unethical for opponent Y to send out mailers attacking candidate X for being a Republican? It really should have no bearing on whether X would be a good judge, but in most of Cook County, Republican is a dirty word - and like it or not we do have partisan judicial elections