Tuesday, June 25, 2019

Correcting the record: Justice Burke issues second statement on Cara LeFevour Smith appointment

I missed this when it came out -- which it apparently did only hours after my post on this subject.

You can read the linked earlier post for background if you don't know the story already. But here is the link to the updated statement.

There are two material changes in the updated statement: First, new Judge Smith was found "Qualified" by the Chicago Bar Association, not "Highly Qualified." Second, only six of the seven Supreme Court justices voted to accept Justice Burke's recommendation of Smith: Justice P. Scott Neville, Jr. "did not participate" in the vote.

I will again go on record as being baffled by this entire 'controversy.'

Article 6, Section 12(c) of the 1970 Illinois Constitution provides, in pertinent part, as follows:
A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law. In the absence of a law, vacancies may be filled by appointment by the Supreme Court. A person appointed to fill a vacancy 60 or more days prior to the next primary election to nominate Judges shall serve until the vacancy is filled for a term at the next general or judicial election....
My handy copy of the 1970 Illinois Constitution Annotated says that, in the past 49 years or so, the Illinois General Assembly hasn't quite gotten around to passing a law on the subject of filling judicial vacancies. Accordingly, the Supreme Court is entirely free to appoint anyone it wants to any vacancy that occurs. No screening committee is required. No "transparency" (one of those really malleable words that means entirely different things to different people at different times, depending on whose ox is being gored, er, circumstances). No bar association evaluations. If enough of the other justices on the court will go along with it, a justice is free to fill a vacancy with whomsoever he or she chooses, for any reason, just as long as the appointee is a U.S. citizen and holds an Illinois law license.

(Article 6, Section 11, of the 1970 Illinois Constitution adds a third requirement, namely, that no person is eligible to serve as judge who is not a "resident of the unit which selects" him or her. Historically, however, the Court has not always acted as if this requirement were binding on it for purposes of temporary appointments. However, any appointee would be obliged to establish residency as required by this provision in order to seek election to the vacancy he or she was tapped to fill.)

The point is, the Supreme Court makes temporary appointments. The appointment of Judge Smith is no different from any other of the several temporary appointments that the Supreme Court makes in the course of a given year. It is temporary. Transitory. Of limited duration.

If they provide some boost at election time, temporary appointments are by no means a guarantee of election. In Cook County, a Supreme Court appointment does not even guarantee slating. My archives are chock full of examples of persons who received temporary appointments, but were unable to convert these appointments into election.

Those temporary appointees who have been able to secure election to the bench have been able to develop political support from (or they already had the support of) the elected officials and other community leaders in the county or in their subcircuit.

Clearly, new Judge Smith is going to be facing an uphill battle with some of the elected officials and other community leaders in the 7th Subcircuit. If she even runs.

But, in my opinion, based on my observation of judicial elections in Cook County these past 12 years or so, this controversy is not about Judge Smith. Not particularly.

I don't claim to know for a fact, but I have every reason to believe that this entire contretemps is about an individual politician's failed attempt to redeem a promise to a particular individual -- a promise to make that individual a judge.

In general, I am in favor of politicians attempting to keep their promises.

So I am not being critical.

However, in this instance, I suspect that the politician in question calculated that his best chance at redeeming his promise was by securing a Supreme Court appointment for that person -- a temporary appointment, yes, but that would fulfill the promise.

The word 'calculated' is carefully chosen. The politician may have also calculated that he might not be able to clear the field of other African-American candidates in favor of his chosen candidate; therefore, in a primary contest with multiple African-American candidates, in an increasingly diverse subcircuit,* he might not be able redeem his promise to make this person a judge except by appointment.

If the politician's preferred person were appointed, but did not win in a crowded primary field, the politician could say that this was the appointee's fault, not his own. He could credibly point to the appointment itself, and his own presumably substantial efforts on the candidate's behalf, even in a losing cause.

But the appointment did not go as the politician had hoped.

Protests followed, and most of those protesting honestly thought they were protesting about racial disrespect, or for transparency in an appointment process. But I think it was about a promise. To a specific person. Who may well run for the spot anyway -- and win.

Meanwhile, here's a little thought-experiment for your consideration: What sort of law, if any, do you think the General Assembly should enact regarding the filling of judicial vacancies as they occur? Extra credit: What sort of law do you think the General Assembly could pass?

I'll hang up now and listen for your answers.

* Just how diverse the 7th Subcircuit has become is the subject of a guest post by Frank Calabrese that I expect to have for you shortly.


Anonymous said...

anyone know what happened at pre-slating ? Anyone challenge Foxx yet ?

Anonymous said...

A 3 year residency requirement for subcircuits. Also a substantial portion of your practice should be in the county in which you seek appointment. Neither will pass!