Tuesday, March 27, 2018

Was this election cycle rougher than previous ones?

Updated March 28, 2018 to correct factual error.

My working hypothesis is 'yes.'

I was going to go off on a rant about how, with the best of intentions, trying to obtain heightened public interest in Cook County judicial races, we have 'let the Snake in the Garden.' The infamous 'poser' video was to be Exhibit A.

And then I took a breath.

We elect judges in a partisan primary process. Candidates vie for slating, or for political support despite slating. The Snake has always been in the Garden. Actually, since human beings are inherently political animals, we can't take politics out of the judicial selection process, whatever process we employ. (And that includes so-called 'merit' selection -- a topic for a different day, if we must.)

But I had long maintained that judicial elections were different than elections for alderman or state representative. Different and better: Judicial candidates were civil to one another -- for one thing, during the campaign the candidates often seemed to see more of each other -- including their opponents -- than they did their own families. So there was a kind of Stockholm Syndrome that took hold. Also, the lawyers campaigning for judge were going to be in court, one way or another, when the dust from the campaign settled, and one might wind up appearing in a case before one's former opponent. As a purely practical, selfish matter, it was better not to create hard feelings during the campaign that would damage one's ability to practice afterwards.

I first developed these impressions when I ran in 1994 and 1996. But I have seen further evidence of this candidate cordiality since I've been writing this blog.

My favorite example dates to 2008, when a candidate emailed me about my very first set of Organizing the Data posts. I had made a transcription error concerning one of his opponents, he wrote. His opponent was not rated Qualified by whatever group, he continued; no, he said, she was actually rated Highly Qualified.

Imagine that happening in a race for the General Assembly.

During the election just concluded, after early voting began, one subcircuit candidate took to Facebook to complain about being hassled at an early voting site by one of her opponent's campaign workers. Her opponent promptly responded on the Facebook post, acknowledging responsibility for the errant campaign worker, repudiating his behavior, and advising that he had instructed the person in question to never do that again.

I can certainly imagine a candidate for the General Assembly being hassled at an early voting site -- but I doubt if the opponent's reaction would have been as unequivocal. Or as credible.

Even so, that's a degree of bad behavior that I've not associated with judicial campaigns. I blame money.

Dr. Klumpp will eventually weigh in on this, I assume, but it's my perception that, with increased attention being paid to judicial campaigns, there is also an increase in spending on judicial campaigns. It isn't just friends and family and valued colleagues volunteering to pass out the candidate's literature: These days, a lot of candidates appear to be hiring help at all stages of the campaign, from petitions to election day.

Many judicial candidates are engaging professional campaign consultants these days to help them run their campaigns. When I ran for judge, and even after I began covering judicial elections on this blog, I did not know that such creatures existed. I became aware of them only gradually.

In part this was due to my naivete and ignorance, but it was also due, I think, to the fact that not as many campaigns employed consultants back in the day and to the fact that those consultants that were employed then tended to maintain a lower profile than many judicial campaign consultants do now. Some campaign consultants have come into the judicial candidate consulting business after successfully promoting aldermanic or legislative candidates. And they bring their 'tricks of the trade' with them.

Negative mailers, for one, like this gem from the 6th Subcircuit:

If you look at this for a nanosecond, you will see that Judge Beach was 'accused' of challenging the assessment on his home -- you know, a perfectly legal thing to do. Politicians of all stripes offer seminars in how homeowners can make these challenges every single year.

But, wait, there's 'more': A person interested in becoming a judge actually donated money to the Chairman of the Cook County Democratic Party. And....? I've never had the discretionary income available to donate money to politicians -- one of the many reasons why I'll never be a judge -- but Mr. Beach did have some shekels left in the till on occasion and allegedly employed them thusly. Which, by the way, is also an entirely legal thing to do. So good for him.

But most voters wouldn't look at this piece for even long enough to think that through. On the way to the recycling bin, however, voters might absorb the sneering, nasty tone of the piece and think less favorably of Judge Beach. That's all that mattered to the sender.

The unidentified sender.

I don't pretend to know if this piece originated with another candidate's consultant. I make no assertion in this regard; I cast no aspersions. But it's a low tactic and one I'd not seen employed in a Circuit Court race heretofore. Hence, my hypothesis that this campaign was coarser than campaigns I'd covered heretofore.

There are always outsiders trying to influence judicial elections; that's not new and it's not generally objectionable. I've been printing endorsements from this group, or that one, since I started covering this beat.

Sometimes groups are formed solely for the purpose of influencing judicial elections. And that's OK, too. In this election cycle one such group was the Judicial Accountability PAC.

Attorney Brendan Shiller of Shiller Preyar was the moving force behind this pop-up PAC. (If you look, you'll see that John Preston was named as Chairman of the group, and a present or former Shiller Preyar paralegal, Roberto Lopez, was named as Treasurer. However, I have confirmed with multiple sources that Shiller was the real force behind the group.)

Shiller, who has also managed election campaigns, including judicial campaigns, used Judicial Accountability PAC to support Judges Kent Delgado, Charlie Beach, and Stephanie Miller in their 6th Subcircuit campaigns and also Arthur Wesley Willis and Judges Fred Bates, Adrienne Davis, Toya Harvey, Travis Richardson, and Debra Seaton in their respective 2nd Subcircuit campaigns.

Again, there is nothing wrong with forming a group to influence election results, and certainly nothing inherently wrong with supporting this candidate over that one.

However, in the 4th Subcircuit, the Judicial Accountability PAC went negative in its support of Judge David Navarro and Attorney Martin Reggi.

Judicial Accountability PAC sent some positive Navarro mailers, too, but my objection is to the one (which does not appear to be online anymore, of course) in which Navarro's opponent was blasted for having represented Jon Burge. (Among other areas of practice, Shiller's firm represents individuals in excessive force cases against police officers.) The implication of the Shiller-Judicial Accountability PAC piece was that Navarro's opponent was somehow in league with, and in sympathy with, police torturers.

That crosses a big, bright line for me.

Movie stereotypes notwithstanding, good lawyers represent their clients, they do not become them.

Similarly, in a number of comments you never saw, a countywide candidate was castigated for her many years of working for a firm that has long and successfully represented a number of substandard carriers. (At least some of principals in the firm also owned one of those carriers, at least at one time.) And, granted, if you've ever had to deal with that firm, you probably have a horror story or two about your experiences. I do. But everyone, even a substandard insurance carrier or a police torturer, is entitled to zealous, but ethical, representation.

And lawyers, of all people, should know better than to suggest otherwise.

Just as lawyers should not be smeared for representing unpopular clients, judges should not be targeted solely on account of their assignments.

Judge Navarro and Judge Stephanie Miller were among the judges assigned to the new Pretrial Division of the Circuit Court last September when it was set up to implement the Circuit Court's new affordable bail program. Whether you think the affordable bail plan good or bad, well-thought-out or in urgent need of refinement, it was obvious from the start that it would be controversial. And so it was, on Election Day, that Second City Cop tweeted support for Navarro's opponent because Navarro "has given WAY TOO MANY serious criminals super low bonds or signature bonds."

It is one thing to criticize a judge for performing poorly in an assignment, for treating counsel or litigants shabbily, or for making intemperate or injudicious remarks -- but it is quite another to criticize a judge for implementing a program as per instructions. Particularly when the judges in question are new and unlikely to have had any serious input into how the program was rolled out.

One group of candidates that did not apparently suffer in this election cycle on account of their job responsibilities were the several present or former Assistant Public Defenders (a dozen or more) who were successful in winning their primary elections.

I don't know of any APDs who were the target of negative mailers in this election cycle because they took on the representation of persons accused of crimes, sometimes heinous, infamous crimes.

But I did hear of one APD who was targeted for campaign finance violations because of money donated to her campaign by her mother. Which was -- despite the complaint -- almost certainly legal. (I say almost certainly because I never received confirmation that the complaint was dismissed by the Illinois State Board of Elections. I am confident that it was -- but I do not know.) Again, I do not suggest that the APD's opponent knew about the complaint before it was lodged -- but the candidate whose supporter initiated this complaint was not well served by this 'assistance.'

No, on balance, I think there was more negative campaigning, more questionable tactics, and more badly-spent money, than in any judicial campaign I've covered previously.

Perhaps you think differently. Perhaps you have further anecdotal support for my hypothesis -- or can recount events that undermine it.

But... please... don't get personal in the comments. I want to print as many as I can.


Albert said...

Working on it right now sir! Lots to deal with this time. Hopefully tomorrow.

Anonymous said...

I'm excited to hear Dr. Klumpp's thoughts on this. I know that he has included spending as a factor in analyzing judicial races. However, has he ever looked at the type of spending that candidates have done and whether certain types are more effective than others? That is, I wonder if Dr. Klumpp can ascertain, based on campaign finance disclosures, whether mail, TV, radio, phone calls, etc. are most effective for candidates in these judicial races.

Anonymous said...


Anonymous said...

The negative piece on Beach was sent by an unidentified mailer because the Judicial Ethics rules apply to candidates running for Judge. Probably wouldn't be too difficult to find out where it came form though.
In the 4th sub there were mailings containing the voting records of some of the candidates which showed that they had pulled Republican ballots in previous primaries though running as a Democrat now. Was that improper ? Apparently it didn't work because they were winners.

Albert said...

Unfortunately I can't yet examine the campaign spending details for this primary because figures for the current quarter won't be on file with the state elections office for some time yet. Once a reasonably complete data set is available (and generally that means waiting for second-quarter figures to be filed as well), I'll prepare something for FWIW on trends in campaign spending.

But I've just finished and sent Jack an analysis of the rest of the primary and it's in his editorial hands now. Floored by the enthusiasm, thanks Anon 6:26.

p.s. So far I haven't compiled breakdowns of the types of expenditures for each candidate and I'm not sure it would be possible to do so with sufficient accuracy just from required state filings. It's a great question and I'll look into it further.