Thursday, December 31, 2020

Sanjay Tailor appointed to countywide vacancy

The Illinois Supreme Court today appointed Associate Judge Sanjay T. Tailor to the countywide vacancy recently created by the death of Judge Diane Gordon Cannon.

The appointment is effective Monday, January 4, and expires December 5, 2022.

Currently serving in the Circuit Court's Chancery Division, Judge Tailor became an Associate Judge in 2003. Before becoming a judge, Tailor served as a Cook County Assistant State's Attorney, rising to the position of Deputy Supervisor of the Torts and Civil Rights Litigation Section. Licensed as an attorney in Illinois since 1991, Tailor began his legal career in private practice, working for the firm of Chapman and Cutler LLP. The Supreme Court's press release about the appointment is available here.

A Very Merry Christmas to all, and moderate expectations for the New Year

I know what you're thinking: Merry Christmas? Now? Christmas Eve was a week ago. Once again Leyhane comes in late and lame.

Which may be true -- but it's still Christmas. Did your true love give you seven swans a-swimming today? This is the Seventh Day of Christmas. The Shepherds are back with their flocks, perhaps, but the Three Kings are still following the Star. By now, perhaps, they've stopped off at Herod's palace to ask for directions, but they haven't yet found the place where the Child was.

Come to think of it, this story may provide a good explanation for why men (allegedly) have been reluctant to stop and ask for directions, even prior to the invention of Google Maps: Look at the terrible things that happened when the Wise Men innocently asked for directions to Bethlehem. No responsible person would want to ask for directions after that, right?

The Twelve Days of Christmas will continue into next week. The Wise Men will finally get to deliver their gifts on January 6th, the Feast of Epiphany. And, yet, many of my neighbors, and I'll bet some of yours, too, have already taken down their Christmas decorations. I understand that this year, in particular, many are in a hurry to be done with Christmas. Because after Christmas comes New Year. And with the New Year 2020 will be but a nightmarish memory. is running some clever ads that, I think, catch the national mood toward the year now ending -- in them, Satan meets his soulmate, 2020. In the picture above, the happy couple are having a picnic in an empty stadium -- emptied, we automatically realize, on account of COVID-19.

Since last Sunday, Brewster Rockit has been taking a not-so-fond look back at 2020. In a subsequent strip, one of the characters suggests that "its like 2020 was run by a super villian." A lot of people, I think, take that view.

And we certainly hope 2021 will be better.

But the 'Rona won't vanish with the last stroke of midnight tonight. Our ongoing two-week shutdown, now in its 10th month, will continue into an 11th and beyond.

Many people are thinking things will improve dramatically after January 20. "My new favorite palindrome - 12021" was making the rounds on Facebook a week or so ago. Things should be a little less crazy in Washington---I hope---on January 21. At least the early monrning Tweets from the White House will presumably cease.

But things are going to be rough for a lot of us for a long time to come. I don't know if the Loop will ever come back to anything like what it was: Business owners have seen for themselves that a lot of people can work from home. Why pay rent on offices in downtown skyscrapers? Leases will expire and not be renewed. Offices that must remain will downsize. And what will become of the buildings themselves? These were the golden geese of our property tax system. Their owners won't be making as much money; the buildings will not be generating vital tax revenue. And what about the conventions and trade shows that provided so much tax revenue. All of these associations have learned how to do virtual events now -- will they want to resume actual events, once public health authorities permit? City and County revenues are going to be woeful for the foreseeable future.

When will the courts fully reopen? How? Every sort of business owner is asking questions like this. Local authorities haven't received as much vaccine as was promised -- and have pushed out only a small fraction of what they have received. The pace will quicken. But, even so, it will be months, at best, before most of us will be vaccinated.

And when we are all vaccinated, will there be restaurants to visit? Will any movie theaters survive? Will live theater return? The White Sox should be competitive -- but will people be able to afford tickets?

The economic numbers aren't so bleak because, while so many were suffering, Amazon and Wal-Mart and Zoom and a lot of the tech sector thrived. The very rich got richer. But a lot of jobs aren't coming back. Not in 2021. Probably not ever.

So Happy New Year to all -- but don't get your hopes up that 2021 will be a great improvement over what we're living with now. Not right away. Maybe at some point. Whoopee!

Wednesday, December 16, 2020

The Longest Election: Dr. Klumpp analyzes the Cook County judicial retention results

by Albert J. Klumpp

Two years ago Cook County experienced an election that was different from any other in its 54-year history of retention voting. Last month’s election, while not a carbon copy of 2018’s, had many of the same basic characteristics and indicates that what happened in 2018 was more than just a flash in the pan.

Concern over police misconduct and wrongful convictions continued to drive higher-than-normal levels of attention to the retention part of the ballot. Voter participation on retention judges was 70.02%, roughly equal to that of 2018 but reaching just above 70% for the first time ever.

Most of the past fluctuations in participation can be tied to changes in voting systems and ballot designs. 2018 and 2020 together are only the second instance of participation changes attributable to a substantive public policy matter (the other being the Operation Greylord investigation of the 1980s). Evidence of this is that nearly all of the 2018-2020 increase is attributable to Chicago voters and not suburban voters. Historically a higher proportion of city voters has skipped the retention part of the ballot compared to suburban voters, but in 2018 and this year, city participation rose to nearly equal suburban participation.

The base approval rate for the entire set of judges—that is, the rate for a judge with no name-cue advantages or informational disadvantages--was 75.3 percent, a historically typical figure and essentially unchanged from 2018’s 75.4 percent. Female judges had their best election ever, with a 3.5 point advantage relative to male judges. Historically their advantage had been 1.5 to 2 percentage points but began creeping upwards more recently, jumping to 3.4 points two years ago.

On the other hand, there was no significant racial/ethnic vote. Typically there is a small but detectable bump for having a recognizably Irish, African-American (based on US Census data) or Hispanic surname. But while 2018 saw one- to two-point bumps in all three categories, nothing of the sort was detectable this year. Certain wards and townships showed expected preferences--Irish names in the 19th Ward; Hispanic in Cicero Township; African-American on the South Side—but in the overall countywide numbers there was no meaningful advantage.

The most important characteristic of the 2018 election was the substantial use of voter information. Nearly one-third of the 2018 retention electorate (32.7%) voted based on some source of information—a newspaper or bar association, a social media guide, or one of the political or community campaigns against Matthew Coghlan. This year, despite the larger turnout typical of a presidential election, information use held relatively steady at 31.9%. Both of these elections eclipsed the previous high of 22.0% in 1988.

While the 2018 and 2020 figures are similar, their composition differs. One difference is a decrease in the county Democratic party’s influence. In 2018 roughly seven percent of the electorate followed the party’s instructions to support all judges except Coghlan. This year its influence was less than three percent, albeit with a larger electorate. The wards and townships where the party’s influence was greatest were largely the same in both elections, but the overall effect was lower throughout. Negative publicity over the Michael Toomin controversy undoubtedly hurt the party, but another factor may have been a decrease in the overall number and timing of party mailers (still looking for information to confirm or refute this).

In contrast, there was an increase in the impact of social media. The “Girl I Guess” voter guide that emerged in 2018 remained influential this year, with an estimated 4.2 percent effect (versus estimated 3.4 percent in 2018, likely but not provably higher). In addition, a bare-bones “Chicago Voter Cheat Sheet” prepared by two city political activists was statistically detectable in every city ward except the 41st, and had an overall impact of roughly 2.6 percent countywide. Together the two guides had a larger impact than any single bar association or newspaper.

As for bar associations, the ISBA’s ratings emerged in 2018 and 2020 to become an influential information source, worth roughly 3.5 percentage points in both elections. More media outlets have reported ISBA ratings in recent years and their reporting is having an effect. For instance, the suburban Daily Herald newspapers, which in the past had tended to report CCL or Alliance ratings in their pre-election coverage, instead emphasized ISBA ratings in both 2018 and 2020. In all of the suburban townships where the Herald newspapers circulate, ISBA ratings this year showed an influence of between six and eight percentage points.

Ratings from the CBA and Chicago Tribune measured in the 5-6 point range, as they did in 2018. There also was evidence, as in 2018, of Alliance ratings having a small but detectable influence where little or none besides the CCL’s ratings could be detected in prior years. This is difficult to pin down precisely because of the number and similarity of the ratings among all of the bar associations, but overall the numbers do suggest, as they did two years ago, that the Internet and mobile devices are being used by increasing numbers of voters to access information from more different sources than in the past.

Finally, the usual bit of fine print: the statistical estimates reported here are just that—estimates—and have margins of error, but all are considered highly statistically significant.

Albert J. Klumpp has been a generous and frequent contributor to FWIW over the years. A research analyst with a public policy PhD, Klumpp is the author of several scholarly works analyzing judicial elections including, most recently, "Evaluating Judicial Merit Selection," in the November 2020 issue of Arizona Attorney (the link will take you the magazine website; you'll have to click around a bit to access the article). Closer to home, Klumpp's recent publications include "Campaign Spending in Cook County Judicial Elections," CBA Record, Nov.-Dec. 2019 (p. 30)

Tuesday, December 15, 2020

The Longest Election: Starting a look back at the 2020 election

Maybe it was done to generate interest -- and, not coincedentally, to divert attention from the seemingly certain Democratic nominee. Maybe it was done because they had no clear frontrunner (though many alleged movers and shakers were supposedly pining for Jeb Bush). Whatever the reason, in 2016, the Republican Party sought their presidential nominee using a reality TV format -- their own version of Survivor, The Real World, or I'm a Celebrity, Get Me Out of Here -- with roughly 25 Republican hopefuls.

Or roughly 24 Republicans and billionaire reality TV host Donald Trump.

The Republicans and, ultimately, the nation as a whole were shocked -- shocked -- when the reality TV host emerged from this hokey process as the nominee.

Still, the concept might have been retired, unmourned, but for the unexpected outcome (unexpected by any pollsters or pundits) of the 2016 election. It is apparently a fundamental law of American politics that, if a tactic works for THEM, no matter how stupid or far-fetched, it will be copied by US.

Maybe that's unfair to politicians. It works that way in other industries, too. Does anybody get a big-budget movie greenlighted these days without a comic book superhero angle? Imitation may be the sincerest form of flattery, but it is also the best defense against ever having to have an independent thought.

Thus it was that the 2020 election started before workers could remove that unshatterred glass ceiling from the hotel ballroom. And, sadly, history will affirm that many Democratic Party leaders first responded to Trump's victory by casting about for their own billionaire TV host to run against Trump in 2020.

When Oprah turned them down, the Democrats came up with their own reality TV format -- not just an island, but a two-island mini-archipelago, with something like 50 wannabes, many of whom were known to others beyond their immediate families. One island was like the kids' table at a holiday gathering, with obscure contestants vying for the chance to move up to the grownup table, from which the eventual nominee would emerge. Contestants could be voted off the islands entirely, or demoted to the kiddie table, apparently on the basis of responses to the breathless emails that clogged our inboxes every morning. (Who won last night's debate? Vote now!) I'm only surprised there wasn't an 800-number flashing throughout each nightly program.

There's no guarantee that the reality TV format will be abandoned four years hence. Indeed, I'm seriously afraid that, in 2024, one or both parties may add a panel of party elders to help eager contestants craft their messages to the American people. (Congratulations! You're on Team Bernie!) The Republic might survive that... as long as the parties don't make the candidates wear costumes.

The onset of the Pandemic also contributed to the seeming length of this election season.

But it wasn't just the fact that we were stuck at home, seeking affirmation of our increasingly strident views from our like-thinking friends on Facebook, or performing pathetic dances on Tik Tok as the economy crumbled about us -- this election season really was longer than its recent predecessors, and on both ends.

Early voting started earlier than ever -- and, of course, the unprecedented numbers of mail-in ballots guaranteed that it would take far longer than usual to figure out who won. Indeed, you won't have to drive too far beyond the Chicago suburbs before you encounter some seemingly solid citizens who are not entirely sure that the national election is over even now.

But the 2020 election is over, even though, in a few local cases, discovery recounts and related court challenges will continue a while longer. So it's time to start looking back, and see what really happened and, potentially, use that hard-won knowledge to begin preparing for 2022.

By which time, hopefully, our two-week shutdown will finally be over....

Unfortunately, I have more questions than answers at this point. Among these:

  • Despite being bombarded with incessant messages about the necessity and virtue of voting, and despite a myriad of options for accomplishing this civic duty, roughly three out of 10 of our neighbors still did not bother to vote. Why?

  • Mail-in ballots unquestionably skewed strongly Democratic. But were they uniformly distributed among the population, or were there concentrated pockets of mail-in participation? If so, where?

  • Do any identifiable pockets of mail-in voters in Cook County correspond with nationwide patterns? Were there nationwide patterns?

  • Did local mail-in voters linger longer over their ballots, giving more attention to the down-ballot questions -- the judicial retention ballot, for example?

Definitive answers to some of these questions may be impossible to ascertain. But the next essay in this series, a guest post by Dr. Albert J. Klumpp, will suggest possible answers to one or more of these. And -- SPOILER ALERT -- Dr. Klumpp will thoroughly refute my unsupported perception that voters were more hositle toward retention judges this year than in recent elections. Stay tuned.

Monday, November 30, 2020

Be careful what you wish for: Changes announced to Rule 23

I have tried---really, I have---to summon the enthusiasm exhibited by my fellow practitioners concerning the November 20 Supreme Court Order amending Illinois Supreme Court Rule 23.

The Appellate Lawyers Association hailed November 20 as "a great day for the Illinois appellate bar." The ALA's celebratory email breathlessly recounted the "years of advocacy by the Appellate Lawyers Association, working in conjunction with the Illinois State Bar Association and the Chicago Bar Association, for exactly this amendment to Rule 23." I mentioned some of these extensive efforts in a 2017 post (which also sounded a warning to be careful what one wishes for).

The bottom line is that Rule 23 Orders entered after January 1, 2021 may be cited as persuasive authority. They still are not precedential. Rule 23 Orders entered before the first of the year may not be cited "except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case."

The rule change will presumably alleviate the frustration that every appellate practitioner has experienced when a Lexis or Westlaw search returns a case that has exactly the language you were looking to plug into your brief -- only to find that the case was decided under Rule 23. At least if the Rule 23 was entered after 1/1/21. But... will Rule 23 Orders actually be better somehow after the New Year?

If Rule 23 functioned as its original drafters intended, the Supreme Court would never grant a PLA from a Rule 23 Order -- and we all know this is not the case. There are new examples every term.

Rule 23 Orders can be quite scholarly. They can quite carefully delineate and distinguish all applicable precedents as well or even better than published opinions on the subject. And these are the Orders that appellate practitioners are looking to cite when they are issued on or after 1 January. These are the Orders that are fueling the ALA's excitement. Of course, such Orders probably should have been published in the first instance -- and should be published after January 1, 2021, too. Moreover, not all Rule 23 Orders are not created equally.

Every appellate lawyer hopes to contribute, victoriously, to the development of the common law. This can only be done through published opinions. And, at one time, I thought that every case should end up in a published opinion. But I also suspect every appellate practitioner has had cases in which a disposition under Rule 23 was a mercy. (I certainly have.) Sometimes we make really good arguments in not-so-good cases -- but we are relieved when the Appellate Court charitably chooses not to share the refutation of these arguments with the world.

And as grateful as practitioners sometimes are for Rule 23 dispositions, there are others.... It would be impolite as well as not entirely accurate to state that Rule 23 is where the justices bury their mistakes -- but many practitioners have experienced pangs of doubt, while reading numbly through a Rule 23 defeat, about the amount of time that an elected or appointed member of the Appellate Court actually spent with the briefs. Or in crafting, or even editing, the Order. (This is one reason why the 2018 changes to Rule 352, pointedly encouraging more oral arguments, was so gratefully received by the bar.)

Sometimes the ability to use Rule 23 seems to give a panel a seeming license to disregard controlling precedent. I'm sure many appellate practitioners could (but would probably not, not without the liberal administration of sodium pentothal) cite examples of Rule 23 Orders in which the court found the facts so compelling as to require a certain result, the weight of precedent notwithstanding. Published cases may give a practitioner reason to assume success in a given case only to find, to her sorrow, that the Appellate Court never applies that rule when the case can be decided in the shadows of Rule 23. The new rule may flush some of these instances out into the open where they can no longer be politely ignored. That could be a good thing. Only time will tell.

Wednesday, November 25, 2020

Then again, maybe it's not all over in the 12th Subcircuit...

CBS2 aired a story last evening about a challenged raised by 12th Subcircuit candidate Frank R. DiFranco to the Judge Patricia M. Fallon's apparent come-from-behind victory. Fallon's narrow victory (502 votes) was certified yesterday.

If the video that I have attempted to embed above does not work---a distinct possibility given my limited technical abilities---the CBS2 story can be accessed at this link.

I have reached out to both the DiFranco campaign and the County Clerk's office for more information and I will update this post or put up an additional post if and when I have something new to report.

Tuesday, November 24, 2020

It's official: Fallon wins in 12; Mahoney retained

The votes are all counted, finally, and, finally, we can say: The "Red Mirage" was real.

No... wait... we can't say that. Mirages, by definition aren't real. Perhaps, instead, we could say the Red Mirage Phenomenon played out as prophesied.

The national pollsters messed up again in 2020. Not as bad, perhaps, as 2016 -- this time, the candidate predicted by the pollsters to win did in fact win -- but there was no landslide, though increasingly giddy pundits were making more and more extravagant promises in this regard as Election Day drew ever closer. But the vast majority of talking heads all cautioned that, on Election Night, it would appear that Trump had won, or was on his way to winning, a second term because Trump voters were going to the polls in person -- and Democrats were voting by mail. The vote by mail ballots (VBM ballots) would, ultimately, they said, flip the script.

Then came Election Night and all the pundits forgot about what they had said about mirages and began plotzing all over national TV....

The VBM effect was particularly strong in True Blue Illinois. A lot of races seemed to be heading for Republican wins as Tuesday, November 3 turned into Wednesday, November 4. Two Cook County judicial races---the only two contested Cook County judicial races---were among those impacted by the VBM wave.

Appointed Judge Patricia M. Fallon (pictured at right) seemed likely to have lost her seat as the in-person votes were posted. The gap seemed too large to close. Then, as VBM ballots were tabulated, the gap grew smaller. And then smaller still. Eventually, Fallon eked out a lead -- and, now, according to official results revealed today, has eked out a win, by 502 votes, 82,976 to 82,474.

Meanwhile, in the 13th Subcircuit, which looked like a cliffhanger on Election Night, Susanne Michele Groebner has won a decisive victory, with a better than 14,000 vote margin.

VBM ballots do not appear to have flipped any retention races. Judge John J. Mahoney was bobbing at or near the 60% mark on Election Night, dipping below 60% in City returns though faring better in the suburbs, and his fortunes seemed to ebb and flow with each new release of totals. In today's final figures, though, Mahoney's "yes" percentage was 60.13%, representing a slight upturn in his favorable numbers since I'd last reported them.

In other closely watched retention races, Judge Michael P. Toomin, though dumped by the Cook County Democratic Party and targeted for defeat by the Judicial Accountability PAC, was retained with 61.67% "yes" votes, according to today's final figures. Judge Patricia Manila Martin, who told evaluating bar groups that she would be retiring, was nevertheless retained with 62.16% of voters agreeing that she should be retained in office. Only two judges were actually defeated for retention, Mauricio Araujo, who finished with a "yes" vote of only 48.14%, and Jackie Marie Portman-Brown, who finished with a "yes" vote of 59.32%. Both had been assigned to administrative duties by the Executive Committee of the Cook County Circuit Court prior to the election; Araujo was actually brought before the Illinois Courts Commission on misconduct charges during the election cycle, quitting before the Commission could determine what sanction would be entered against him.

I have suggested now, on a couple of occasions, that the electorate this year may have been unusually sour and that this was reflected in lower than usual favorable percentages for all retention judges. After perusing the final figures, however, it may be necessary to revisit this conclusion. Five judges, all female, did top the 80% favorable mark in this election, Donna L. Cooper, Debra B. Walker, Cynthia Y. Cobbs, Maritza Martinez, and Bridget Anne Mitchell. Judge Walker seems to have led the pack with an 80.59% "yes" vote. In 2018, there were eight retention judge candidates (also all female) who bested the 80% mark. I think I'll wait for Dr. Klumpp's opinion as to whether this difference is significant.

The Circuit Court of Cook County throttles back

Yesterday Cook County Chief Judge Timothy C. Evans entered General Administrative Order No. 2020-7, an order which, by its terms, supersedes the latest (October 17) updates to G.A.O. 2020-02.

The Circuit Court is responding to the current surge in COVID-19 cases by allowing all court business, "except in extraordinary or compelling circumstances," when not otherwise prohibited by "the limitations imposed by the constitutions of the United States and the State of Illinois," to be conducted by videoconference.

Paragraph 1.a.v. provides specifically that, "No bench trials in criminal cases and no jury trials of any kind shall be held until further order of the court. When jury trials resume, the judge presiding shall schedule jury trials not less than 60 days after the date on which the parties are notified of the trial date."

The dust will be settling soon.... meanwhile let's talk about comments

The results of the November election should be certified today, three weeks after the polls closed. I'll hold off on final reports on a couple of races until these come out -- but it does appear that, when vote by mail ballots are finally tabulated, Judge Patricia M. Fallon will have completed her comeback from a substantial Election Night deficit and held on to her 12th Subcircuit seat. Admittedly, I did not report on every update.

The truth is, the results of the 2020 November election were fixed like a fly in amber when the last precinct closed in Cook County on the evening of Tuesday, November 3 -- or perhaps when the Main Post Office on Harrison Street stopped postmarking envelopes November 3.

(One good thing about efiling is that it's been a long time since I had to drive downtown in the middle of the night and get in line at the Post Office in hopes that my freshly-printed appellate brief would be postmarked on the filing date---thank you, mailbox rule!---even if, due to the length of the line, it did not look like I would make it to the counter until a minute or two after midnight. Anyone who doubts the literal, physical truth of the expression 'his heart was in his throat' has never been in line in those circumstances....)

But, though the election results were determined by 12:01 a.m. on November 4, these were not immediately known. The order in which the votes were counted made for significant, but entirely artifical, drama. I complained about 'horse race' coverage on TV on Election Night; it didn't seem right for me to contribute to the phenomenon in the races covered here on FWIW. Frankly, I think I reported enough to show the trend lines without engaging in unnecessary speculation.

Judging by the always anonymous comments in my inbox, several FWIW readers disagreed. I got updates, particularly on the 12th Subcircuit race and Judge John J. Mahoney's retention bid, every time new numbers were released.

Often these updates were accompanied by fairly creative statements that I would never print. (Admittedly, there were a couple of "creative" statements on other topics that did make it through in recent weeks, temporarily, due to my unfamiliarity with recent Blogger format changes. But I think I eventually removed them all.)

I have already suggested that electorate generally was in a sour mood this election cycle, just judging from the lower numbers across the board for Cook County judicial retention candidates: Even the highest rated, least controversial jurists fared worse this year than their similarly-situated brothers and sisters in years past. This sour mood was likewise reflected in the anonymous comments in my inbox this cycle.

I've struggled with how I might share some of these with you without actually aiding and abetting the defamatory purposes of some commenters. Some specific names have been deliberately retained. Also, some of the references are certainly obvious, but, in my best judgment, unavoidable, in order to report on the sentiments apparently floating around there among some in our community. I think I can get away with these (and, yes, I've edited where I can):

  • What? Nothing to say about that Retention Class now? So much for judicial independence. The old dinosaur survives. [Redacted] trash talks. And two judges left twisting in the wind. Next time it will be 4 of them. Watch your backs 2022. So many of you have so much baggage. Save a seat for us at the Dearborn.

  • Like mom always said, it's not always cream that rises to the top. Congratulations (?) to the Retention Class of 2020. But just remember, the Daley Center will eventually have to reopen and those of you who barely came to work pre-COVID will have to start riding those elevators with the rest of us sooner or later. You know what that means: R-E-T-I-R-E-M-E-N-T. You know many of you have been talking about it among yourselves and those "leakers" have been telling the rest of us. We will patiently wait for you to make your exit next summer. We will wait and have our petitions ready to pounce on the competition. Donald Trump and the Retention Classes are my role models: sociopaths who don't care about anything but themselves. Time for us to get ours.

  • I've been phone banking all weekend long, courtesy of the Fair Tax Amendment people. Been calling people all over Cook County, encouraging all of them to vote NO on the following judges: Flannery Cobbs Rosario Rivers Raines Buford Sheahan Kubasiak Time to create some more countywide vacancies for 2022.

  • [A certain Democratic committeeman] is something else. He has a mannequin dressed in a white Klan robe positioned outside the early voting location. It has a sign saying "Vote No on these Judges -- Mahoney, Wadas and Democopoulos -- former prosecutors and current racists, bad for OUR community." Very powerful stuff. I would have taken a picture of it, but the guys standing watch looked like they had a healthy respect for their Second Amendment rights and I wasn't going to push my luck.

I had one would-be commenter who researched 60+ names of persons he or she thinks will be on the retention ballot in 2022. This person is already demanding a "no" vote on all 2022 retention candidates "if they don't resume jury trials at the Daley Center in January 2021." I think (I devoutly hope) this was one person who submitted about 10 different comments along these lines (further example: resume trials "or else we FIRE the 2022 Retention Class"). I have reason to believe that one person was responsible for all of these comments since each one named every judge who might be on the retention ballot in 2022.

I posted about a judge who passed away during the height of the election season. I had to suppress several comments. Whatever happened to not speaking ill of the dead? Once upon a time, I thought that a Supreme Court committee on civility was unnecessary... now I wonder if its task is not akin to bailing out the ocean.

Some FWIW readers may be smart lawyers, but they don't understand how Illinois is set up: At least one would-be commenter presumed that Justice Kilbride's loss in his retention bid bodes ill for Justice Mary Jane Theis, who will be on the retention ballot in 2022. Um... Justice Kilbride was elected as a Democrat from an area that has always been Republican -- and has only become more and more so as America's partisan divide deepens. Whatever else the future may hold, Justice Theis will not be facing that kind of uphill battle in Cook County two years hence.

I have to think that this would-be commenter knew better than this... but, on the other hand, the failure of civic education seems more and more apparent:

Hello don’t you think the rate of Fallon’s votes seem fishy? Btw 7 of my families mail in ballets have yet to be counted as of tonight, November 17th. All straight Republican (including DiFranco). That’s not right. No updates on numbers today. Watch tomorrow she will pull ahead. No transparency.

Um... yeah... when I was a brand-new voter, in the late 1970s, living with my parents just across the Lake County line, I could see my primary vote reported in the local newspaper. And I knew it was my vote that had been counted... but only because I was the only one taking a Democratic ballot in my precinct. But that's about the only way that a voter can be absolutely sure that a particular vote has been counted.

A brief survey of the various forms of taxation -- from the regressive to the absurd

The point that you must keep uppermost in mind as you go through this essay (and, really, in my opinion, as you go through life) is that it costs much more to be poor in America than it does to be rich. That's not solely a function of taxation, although taxes substantially contribute to this terrible truth. With that firmly in mind, then, let's begin:

The exact quote is, "[T]he power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), which means that the taxing power can be destructive, but is not necessarily destructive. The quote is usually remembered with the word "is" substituted for the actual word "involves," making it appear as though any tax is destructive. Necessarily destructive. Always destructive.

That's just silly. Why? Because government can not survive without tax revenue. And we need government. As Madison said in Federalist 51, "If men were angels, no government would be necessary." But, alas, humans are far from angelic. Inasmuch as there can be no viable government without taxes, just as no body can survive without blood in its veins, we must be taxed. Taxes are the lifeblood of the body politic.

Now... what is a tax? A tax is any transfer whereby money goes from your pocket to the government or where money directed toward your pocket is diverted to the government.

Some people argue that there are distinctions between taxes, penalties, and fees. Such people often have something to do with the imposition or collection of taxes, penalties, or fees. But, in truth, fees and penalties are merely two additional types of taxes. Let's start with penalties. We could call these "fines" as well, but let's stick with the fancier, twenty-five cent word.

Penalties, admittedly, may not look like taxes at first blush. They are not imposed generally but only on those persons who are found, pursuant to judicial or, increasingly, administrative action to have exceeded the speed limit, or rolled through a red light while making a right turn, or who have been caught holding a cell phone in a moving car, or who have failed to securely close their garbage cans, or kept their lawns mowed to a certain height... the list is nearly endless, limited only by the imagination, greed, and need of the taxing authority.

Now you may suppose that these penalties are imposed merely to offset the cost of enforcing the statutes or ordinances that give rise to their imposition. And, maybe, in some places, or at some times, this might even be true. But, to the extent that speeding or leaving a garbage can open to rodents is offensive to public safety and order, society---that is, government---would have to assume the cost of enforcement anyway. And it would have to pay for the enforcement of these laws or ordinances with taxes. So it comes down to this: Are the taxes for curbing these various undesirable behaviors to be imposed on the general public or the miscreants whose behavior needs to be curbed in the first place?

And some municipalities can be very creative at squeezing revenue from penalties. They can use penalties to generate, not only the costs of enforcement, but additional revenue besides. As the United States Department of Justice, Civil Rights Division, stated in its "Investigation of the Ferguson [Missouri] Police Department," at p. 9, the City of Ferguson "consistently set maximizing revenue as the priority" for its police department, generating "a significant and increasing amount of revenue from the enforcement of code provisions." Ferguson was hardly the only such municipality in the United States that looked to penalties as a boon to their bottom lines. Any dollar squeezed from a scofflaw is one less that has to be raised by other means. Penalties are taxes.

Fees are taxes, too. One doesn't necessarily get that thrill of moral smugness with fees that one might derive from penalties -- those violators deserve to pay! -- but, golly, don't fees just seem so fair?

I mean, after all, not everyone drives a car, so it just seems fair and reasonable for motorists to pay for license plate fees, and city stickers, and driver's liecense renewals. Right? Especially for those who only take the bus. On the other hand, motorists tend to grumble that the per ride fees paid by those taking public transit should cover more of the actual costs of running a public transportation system... except, of course, on those days when traffic conditions or weather force those motorists onto the trains or buses and they blanch at how much fares have gone up since the last time they had to ride.

Fees are the cockroaches of taxes: Though they may sometimes be hidden, they are pretty much everywhere. Every trade or profession, lawyers included, pays a licensure fee. But doctors don't have to pay the registration fees of lawyers, and lawyers don't have to pay the license fees of barbers. Isn't that fair? One of the causes of the American Revolution was the British Parliament's imposition of the Stamp Tax on public documents -- a fee people still pay today, although not to the British Crown, whenever they sell their homes. (So far as I know, however, no American government has tried to extend its stamp tax to playing cards---not yet---so we still have that advantage over the 1760s version.)

Sometimes fees spring up because governments are trying to pretend they're not raising taxes. I do not refer here to fees going up every year, though they do; rather, I refer to new fees being imposed rather than openly raising a tax. Case in point: The City of Chicago has for years charged a semi-annual fee for water and sewer service. (It also imposes a tax on water and sewer service equivalent to the fee.) Anyway, in the last few years, the City has invented a new fee for residential trash collection. Mind you, the City has been collecting trash from single family homes for a great many years -- but only recently has the City imposed a separate fee for this service. Recently, the City announced that it will convert its semi-annual water/sewer/garbage fee and tax bill into a monthly one. But do not worry, Dear Chicago Taxpayers, the City has promised that it will merely be spreading out the considerable burden of this combined fee and tax -- dividing by 12 instead of by 2 -- and not charging a penny more. For a year, maybe. Then it will be soooo much easier to jack up rates higher, faster, farther -- and all the while insisting that the line on property taxes is being held.

Yes, we are coming to property taxes -- but we need to look one other taxation category first.

I refer, of course, to sales taxes. The State of Illinois Department of Revenue defines the term as follows:

The term “sales tax” actually refers to several tax acts. Sales tax is a combination of “occupation” taxes that are imposed on sellers’ receipts and “use” taxes that are imposed on amounts paid by purchasers. Sellers owe the occupation tax to the department; they reimburse themselves for this liability by collecting use tax from the buyers. “Sales tax” is the combination of all state, local, mass transit, home rule occupation and use, non-home rule occupation and use, park district, county public safety and facilities, county school facility tax, and business district taxes.

As noted, sales taxes are charged by every level of government. Everyone is familiar with sales taxes -- lesser taxes on groceries, higher taxes on every other consumer product. The sales tax added on your receipt when you buy something other than food in a store is really an amalgamation of the State sales tax (6.25%), the county tax (1.75% in Cook County), and any local sales tax. In Chicago the sales tax rate on non-food items is 10.25%.

Some services are subject to a sales tax, too. Take a look at the laundry list of taxes and fees on your cell phone bill some time. Every now and again someone spins the horrible idea of collecting sales tax on other services, besides -- like legal services. What a nightmare scenario: Show me an attorney in private practice who collects 100% of the fees he or she charges and I'll show you the unicorn that lawyer rides to work. But... even if we limit the sales tax to legal fees collected, how do we prove this to the taxing authority (City or State or maybe both)? Will government auditors get to check our books to make sure we've not collected any untaxed revenue? And, by definition, in addition to the amounts charged and collected, won't government auditors have to know who our clients are, as well as who is being asked to pay those bills? That seems like a rather fundamental invasion of attorney-client confidentiality... but what do I know?

But back to sales taxes already on the books: The state charges a number specific sales taxes, like the 38.7 cents the State currently collects on every gallon of gasoline you buy. And most levels of government impose "sin taxes." These are also sales taxes -- special taxes on liquor or cigarettes, for example. I don't know if it is yet politically correct to categorize revenue from taxes on cannabis products as "sin taxes." But the idea is that anyone who does not share these vices can feel that special tingle of superiority at the special burdens imposed on those immoral weaklings who smoke or drink. In general, we are less inclined to object to revenues collected from persons in thrall to these various vices.

Now, all of these taxes are considered regressive, meaning they impact the poor more than the rich. A flannel shirt costs $20 at Costco for the rich man and poor man alike. But the $2 sales tax on that shirt is nothing to the rich person, but a far more appreciable portion of a poor person's overall income. The fee charged by ARDC to renew your law license is the same whether you've made money hand over fist or whether you've made next to nothing. If the two lawyers have been in practice the same length of time, the fee is the same, regardless. (There are exemptions for judges, certain court personnel, or persons on active military service, but you get the point.) The rich person is unlikely to leave her garbage can lids loose or her grass uncut. Her car will have a built-in phone system; the poor person may use a cupholder -- or may not. And if the rich person's car triggers a red light camera or a speed camera, the fine will be a miniscule portion of her net worth, but a significant, and perhaps budget-busting expense for the poor person.

Now we arrive at the property tax.

Property taxes may not be considered as regressive as these other taxes, fees, or penalties for the simple reason that home ownership may be out of the reach of many poor people, especially in large urban areas where the cost of living is highest. But, for those who do own their houses, the property tax is extremely regressive.

Moreover, property taxes are based on an absurd assumption: Every few years the county assessor evaluates your home with a view toward establishing the amount that a willing buyer would pay a willing seller for your property. The annual property tax is calculated according to that valuation. Except that, even in our very mobile society, most homeowners do not sell their homes every year. Often they plan, or hope, to remain in their homes indefinitely, until claimed by death or forced to leave on account of infirmity. Thus, even if the assessor's evaluation of a property's value is in line with what Grandview Homes would pay or what Zillow would estimate, the amount calculated should be irrelevant. For the homeowner who does not plan to leave any increase in the home's value is entirely unrealized to the owner unless and until the owner sells. Nevertheless, the county (for itself, and on behalf of all the myriad of municipalities wherein the specific property is situated) demands a tax equivalent to a sizable percentage of that theoretical sales price. So the homeowners buy their house, perhaps even pay off their mortgage, but still continue to buy their house, over and over again, from the county. Which never owned the house in the first place -- but will wind up owning it, via tax forfeiture, if the homeowners stop paying taxes. And if the county can't get someone else to 'buy the taxes' and foreclose.

For the rich homeowner, this never-ending purchase may be inconvenient. For the middle class or working poor homeowner, however, for whom home ownership is supposed to be the culmination of the American Dream, the annual, always increasing property tax, based on theoretical resale values, not on what the homeowner actually paid, may be too much to bear. Homeowners exemptions, senior exemptions, and senior freezes are intended to ameliorate the worst hardships, but these are less and less effective as property values rise.

And taxing bodies depend on increasing property values -- if property values go up, assessed values go up with them, and so do the tax bills. And, yet, the taxing bodies can each state that, because they have not increased their tax rate, they have not increased property taxes. It just..... happens. The City of Chicago is about to add an especially insidious wrinkle to this concept: It will shortly enact a property tax increase that will continue forever... indexed to inflation. (Just in time for Christmas: A gift that keeps on taking. What else could we expect from 2020?)

A homeowner who improves her home -- adding a bathroom, finishing a basement, enclosing a porch -- may be increasing her property value. But, because that may increase her property taxes, through an increase in assessed valuation, unless she's planning an immediate sale, the only one who profits from her good stewardship of her property are the taxing authorities.

And while real property values generally have gone up in our lifetimes, they don't always. See, 2007. While we did better in the Chicago area than many people elsewhere (Florida, for example) when the real estate bubble burst, home values here plummeted. It took a decade for property values to recover in some places; in some they haven't recovered yet. During how many of those years did your property taxes go down? Property taxes seem to track property value increases fairly well... but they are not so good at following property value declines.

And yet property values can be impacted by all sorts of outside factors, for good or for ill. Bankers destroying the economy, as happened in 2007, is one example. There are many others. What someone builds across the street, or two blocks over, may enhance your property value (increasing your taxes) or hurt it (eliminating the theoretical increases on which you've been taxed for years). It is fashionable to denigrate NIMBYs. But, if one considers that, for most homeowners, their home, be it ever so humble, is the only hard asset their family has, or is likely to have, it just may be possible to understand the NIMBY phenomenon.

Since property taxes are based on something at least theoretically objective (assessed valuations)---and since this brief survey is not the place to discuss how these can be manipulated---it is perhaps not fair to call property taxes arbitrary. But given the way in which property values can rise or fall, bubble up and burst, or be impacted by factors wholly outside the property owner's control, it is entirely reasonable to consider property taxes capricious.

Nevertheless, most Illinois jurisdictions are more dependent on property tax revenue than an addict is on heroin. And like a drug addict, Illinois municipalities, from cities or villages, to elementary school districts, high school districts, junior college districts, park districts, library districts, mosquito abatement districts -- the list goes on and on -- always need more.

The Illinois income tax was supposed to provide the methadone to curb this addiction and wean local governments off their dependence on property taxes. When Gov. Richard B. Ogilvie proposed the state income tax in 1969, he suggested that it could "help hold the line or even bring about reductions in local property taxes, because a 12 1/2 per cent share of the income tax will be returned directly to cities and counties." It hasn't worked out that way.

I don't want to pick a scab that's barely begun to heal, but, as every Illinois voter heard ad nauseam during the election cycle just past, we have a "flat" tax here in Illinois. Everyone pays the same rate. So the one-percenter with 1,000 times the income of the average taxpayer pays a thousand times more tax.

We did not adopt the propsed "fair" tax amendment in this election cycle. This was supposed to increase the rate charged to rich people -- making it a "progressive" tax, meaning it would impact the rich more than the poor.

Many reasons will be offered for the failure of the measure. Already the most frequently offered excuse is this one: The millions invested in advertising by Gov. Pritzker, from his own funds, to support the tax proposal, were overwhelmed and overcome by the millions invested in counteradvertising by other millionaires and billionaires (including some members of the Pritzker family) against the tax. The people who tout explanations along these lines are likely to be among those most willing and able to sell you on political advertising should you be a candidate for any office in the next election cycle. They may even be correct, at least in part. But I can't help but think that we've had over 100 years of "progressive" income taxes at the federal level -- and example after example of how rich people have managed to avoid paying the higher rates. Why, during the height of the political campaign just past, we learned that President Trump had paid only $750 in federal income taxes, despite his allegedly vast wealth, in the year he was elected. $750. Voters may well have decided that it's harder for the really rich to evade a "flat" tax than a "progressive" one.

I was going to conclude this survey by arguing that no sane person ever volunteered to pay more in taxes. But a lot of us do voluntarily pay additional taxes. Every Illinois lottery ticket is a tax, too. So perhaps it is best to say that no one really likes to pay taxes. But, perhaps, when we talk about reforming taxes, we should consider the entirety of the present tax structure, not just a single type of tax. Some mixture of these various forms of taxes will emerge from any process. But our goal should be to reduce regressive taxation and, hopefully, diminish our dependence on property taxes. Maybe the only way to break the government's addiction to property taxes will be to go cold turkey -- but that would be really tough for all concerned.

Tuesday, November 17, 2020

Mahoney holding on by slimmest of margins in retention count; a look at where Portman-Brown did, and did not have, support

Nothing is certified yet, so nothing is official. But the County has not posted new numbers since Sunday afternoon.

At the moment, then, Judge John J. Mahoney appears---despite a torrent of "no" votes when VBM ballots were tabulated---to have hung on to keep his seat on the Circuit Court bench. In the City of Chicago, Mahoney polled 457,575 "yes" votes, or only 57.44% of the 796,557 votes cast in the City on his future. In the suburbs, however, Mahoney has 508,556 "yes" votes and 304,636 "no" votes, a favorable percentage of 62.54%.

Put them together, and Mahoney has 966,131 "yes" votes out of 1,609,749 counted -- a favorable percentage of 60.00174934%. One can't cut it much closer than that and survive. So we must await final results.

Mahoney was recommended for retention by the Chicago Bar Association and the Chicago Council of Lawyers. But the Illinois State Bar Association and three other Alliance bar groups, inclucing the Cook County Bar Association, recommended a "no" vote, as did the Suburban Bar Coalition.

Judge Jackie Marie Portman-Brown was among those recommended on the Soul Slate. She was also recommended for retention by both the Chicago Bar Association and the Chicago Council of Lawyers. Portman-Brown was, however, not recommended for retention by the Illinois State Bar Association and six other Alliance bar groups. Like Mahoney, the Suburban Bar Coalition recommended against Portman-Brown's retention. The Chicago Tribune also recommended against her retention. Portman-Brown had been removed from active judicial duty and assisgned to administrative duties earlier in 2020.

When the votes were counted, Judge Portman-Brown fell below the necessary 60% survival threshold in both the City and suburbs. Frank Calabrese has put together this map showing where Portman-Brown did, and did not have, support:

Map created by, and reprinted with the permission of, @FrankCalabrese.

Monday, November 16, 2020

DiFranco's lead down to only 485 votes in 12th Subcircuit race

Per updated results posted yesterday afternoon by the Office of Cook County Clerk Karen Yarbrough, Republican Frank R. DiFranco is clinging to a 485 vote lead over appointed Judge Patricia M. Fallon, 80,653 to 80,168.

Are these the final figures? Probably not. The enormous backlog of vote by mail ballots has taken a great deal of time to work through -- but the end must by now be clearly in sight.

First of all, the deadline is looming for new ballots to come in. Ballots postmarked on or before Election Day will still be counted if received by tomorrow -- but these numbers have dwindled drastically, and understandably so. Even fee checks grudgingly mailed by reluctant clients don't take two weeks to wend their way through the mail. (Those conversations---I'm sure a great many FWIW readers have had them---go something like this: "Are you sure you mailed your check on the 3rd?" "Oh, yes, absolutely. I suppose I shall have to stop payment on it now... and, by the way, can I send you a new check for half?")

I heard from one election observer over the weeked who was absolutely certain there must be thousands more, maybe tens of thousands more, votes to count because suburban Cook County is still reporting a lower percentage turnout than in 2016. The 2016 suburban turnout was 72%. The most recent figure for this election is just a hair under 69%. "And you know there can't be fewer voters this year than in 2016," my informant insisted.

Well, I don't know that. Not yet anyway. Meanwhile, I will continue to update results in this race as they become available.

Meanwhile, in the 13th Subcircuit, in the race that seemed so close on Election Night, Susanne Michele Groebner has emerged as the clear winner, with a margin now of over 13,000 votes. This marks the second election cycle in a row that a Democrat has won in the 13th Subcircuit, an area in which, until recently, Democratic candidates didn't even bother to file.

Friday, November 13, 2020

Decalogue Society Annual Awards Night is onscreen Tuesday, November 17

The Decalogue Society's 2020 Virtual Awards Ceremony will be held this coming Tuesday, November 17, from 6:30 to 7:30 p.m.

The event's keynote speaker will be Alison Pure-Slovin, Director of the Midwest Region of the Simon Wiesenthal Center. Honorees will include:

Justice Michael B. Hyman
Hon. Charles E. Freeman Judicial Merit Award,

Debbie Berman, Jenner & Block
Decalogue Society Award,

Diane Redleaf, Family Defense Consulting
Award of Excellence,

Shomrim Society
Agency Award,

Hon. Alan J. Greiman
Hebrew University Fellowship Award,

Joshua Kreitzer
Presidential Citation, and

Clifford Scott-Rudnick
Intra-Society Award.

Michael Block will be honored by the Decalogue Society as a 50-year member. Herb H. Franks, Rabbi Chanoch Bruce Goldberg, Diane S. Israel, Jordan R. Labkon, Marc J. Leaf, Judge Martin P. Moltz, and Norman B. Padnos will be recognized as 25-year members.

Tickets are $36 each for Decalogue members, $40 for non-members. For $45 members will receive an event link and the Decalogue face mask (which bears the motto, "Justice, Justice Shall You Pursue... from 6 feet away"). Non-members can get an event link and mask for $50. Registration can be accomplished by following the links from this page of the Decalogue website.

Event sponsorships are also available; all sponsor names will scroll periodically during the event. For sponsorship opportunities, email

With most VBM ballots counted now, Judge Portman-Brown appears to have lost her retention bid

I deliberately employed some lawyerly weasel-words when I wrote, on the morning of November 4, that it looked like all Cook County judges seeking retention appeared to have been retained.

There were still votes being counted, I cautioned. A week later, many of those votes have been counted. And Judge Jackie Marie Portman Brown has fallen below the 60% threshold necessary for retention in both the City and the suburbs -- 58.87% in the City, 59.69% in the Suburbs (the suburban returns having been updated just last night). There are still some suburban votes to be counted -- meaning vote by mail ballots already received but not yet processed. There could still late-arriving ballots in the City and the suburbs -- ballots postmarked on or before Election Day can still be counted if they arrive by November 17. But the numbers of validly postmarked, late-arriving ballots has dwindled, as one would expect, to a daily handful. Portman Brown seems unlikely to rebound at this point. Her combined "yes" percentage, by my calcuation, is 59.27%.

On Election Night I reported that Judge John J. Mahoney was below the 60% threshold in City returns. His City numbers got worse over the past week, as VBM ballots were processed. Mahoney received "yes" votes on only 57.44% of ballots in the City of Chicago. However, just as on Election Night, Mahoney's suburban numbers have bouyed his retention bid up above the minimum: As of last night, Mahoney had "yes" votes from 62.65% of suburban voters. By my calculations, however, that comes to 60.05% in the combined total. The margin is whisker thin -- and we may just have to await final certification of the results to know for certain.

The closely-watched retention bid of Judge Michael P. Toomin has not been seriously impacted by these late returns. As of November 4, I reported that Toomin had barely reached the 60% threshold in the City, but had been 'saved by the suburbs.' City totals now put his "yes" vote at 59.02%, but his favorable percentage in the most recently reported suburban returns is 64.15%. His combined favorable percentage is 61.57%.

One thing is clearly evident: When it came to the retention ballot, the electorate was in a sour mood this year. While someone may have slipped past my notice, I haven't seen any retention candidate with an overall favorable percentage clearly above 80%. In the last retention election, there were eight such. (Judge Cynthia Y. Cobbs had a nearly 82% favorable vote in the City returns, but just over 78% in the suburbs. By my calculations, she's at 80.007112% overall -- and she may top the retention class.)

Thursday, November 12, 2020

About that suburban subcircuit cliffhanger....

Remember back a million years ago or so, on the evening of November 3? The two contested subcircuit judicial races---the only two in the whole county---seemed to have veered in different directions since that long ago evening. The 12th Subcircuit race looked set and the 13th Subcircuit looked like it might be a cliffhanger. Then the lead in 13 widened. The lead in 13 has since gotten wider still -- but the 12th Subcircuit race, once seemingly over, has gotten decidedly closer:

And still votes are being counted. And still votes may be coming in. The torrent of vote by mail ballots should be down to a trickle now... but that trickle may be outcome determinative.

A couple of retention races have narrowed significantly, too. More about this soon....

The job of President of the United States includes three distinct roles -- and Mr. Trump's utter inability to perform one of these was his downfall

An awful lot of lawyers were poli sci majors, so I'm guessing that many FWIW readers will look at that headline and think I can't count. They will recall their freshman introductory courses: The President of the United States is Head of Government and Head of State. A combination of Prime Minister, if you will, and King. Two roles, not three. That's what I was taught, too. But limiting the job description in this way misses one vital aspect of the modern presidency.

The Founding Fathers weren't keen on having a President. But they liked having a President better than having a Prime Minister who might build an unrepresentative majority in Congress by doling out ministries as patronage plums, as the PM did in Britain. And they were dead certain sure they did not want a king.

Still, they needed someone to 'front' for the country on the world stage. Someone who would do the bidding of Congress, of course. The Founders may have talked a good game about three co-equal branches of government but, of the three, Congress was expected to be primus inter pares. On steroids. The President was envisioned, to some extent, as a glorified clerk. In a recent Page 2 post, I suggested that we have three types of elected officials in Illinois, policy making, ministerial, and judicial. We never elected federal judges, of course, but the Founders would have seen Congress as policy making and the presidency as ministerial. The President might make a treaty, of course, but it wouldn't count unless the Senate ratified it. The President could not declare war; that right was reserved for Congress, but the President would be expected to execute Congressional policy, in the event of a war, as Commander-in-Chief. The President was required to report back to Congress from time to time on how its policies were being implemented; this was the constitutional germ from which the annual State of the Union address arose.

Yes, the President was initially going to be a glorified clerk---a front man---not much more. However, when the Constitution was adopted, George Washington was the only realistic choice for the position and he was too big for such a small job. The office began to grow with him. He was used to issuing commands, not necessarily following them. And he was willing to be advised -- but he expected, and usually got, consent.

With the rise of political parties, the President, as de facto head of one party or the other, became Head of Government as well as Head of State. The President acquired a role in shaping the policies that his followers in Congress would try to write into law. This was pretty well established by the time of Lincoln's election in 1860. Lincoln enlarged the presidency by adopting still another role. A third role.

There was a hint of this new role at the end of his First Inaugural:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

Lincoln was not speaking as a Head of State or Head of Government. He was speaking as a pastor; the nation was his congregation.

Though not himself a particularly religious man---every pastor but one in Springfield opposed Lincoln's first campaign for the White House because he had not joined any local congregation---Lincoln became America's pontifex maximus, the high priest of our civic religion. (Pontifex maximus was an elected office in the Roman Republic. This was among the offices held by Julius Caesar; it was as pontifex maximus that he reformed the Roman calendar.)

Poli sci faculties may not have recognized the enhanced role, but Presidents following Lincoln surely did: Theodore Roosevelt spoke of the presidency as a "bully pulpit." Heads of Government don't speak from pulpits; neither do Heads of State. But priests do.

Where the academics probably went wrong was in looking at the ceremonial role of other Heads of State: The Queen of England (or, more frequently these days, Chuckie or Billy), for example, is always laying a wreath somewhere. Presidents do that, too. Therefore, they suppose, this is just another function of a Head of State. But, actually, as you may remember, the Queen is also Head of the Church of England. She has a very-well defined sacerdotal role; in a country that celebrates the separation of Church and State, the priestly role of a President is more ambiguous.

There is, however, no other way to read Lincoln's Second Inaugural except as a sermon. The beautiful cadences of that brief speech are unmistakeably biblical. In four, grueling years, how the emphasis had changed: Whereas the pastoral balm was applied only in the last paragraph of a lengthy, legalistic argument for national union in the First Inaugural, three of the Second Inaugural's four paragraphs are wholly spiritual:

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war---seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish. And the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

A President's priestly role is not simply to provide comfort. Mr. Lincoln was not providing comfort in the Second Inaugural when he warned that the Civil War might continue "until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword."

A good pastor provides context, a framework with which to understand, and to accept, and to endure. And to go on. The President as pontifex maximus takes a national crisis, or tragedy, or moment of national grief, and articulates for us what we wish we might have said ourselves. Since Lincoln, obviously, some Presidents have been better at this than others. FDR's "Fireside Chats" brought the nation's pontifex maximus into American parlors, the radio in the corner sitting where, in a former age, the family's pastor might have sat on a visit.

Not surprisingly, given his earlier career as an actor, Ronald Reagan was also pretty good at this role. The closing lines of his speech after the Challenger disaster were, I believe, genuinely touching:

The crew of the space shuttle Challenger honored us by the manner in which they lived their lives. We will never forget them, nor the last time we saw them, this morning, as they prepared for their journey and waved goodbye and "slipped the surly bonds of earth" to "touch the face of God."

Barack Obama wiped away tears as he led the national mourning for the victims of the Sandy Hook School shooting. In his remarks, the President challenged the nation,

As a country, we have been through this too many times. Whether it’s an elementary school in Newtown, or a shopping mall in Oregon, or a temple in Wisconsin, or a movie theater in Aurora, or a street corner in Chicago -- these neighborhoods are our neighborhoods, and these children are our children. And we're going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics.

But this was not a apeech to make legislative proposals. In the role of pontifex maximus, a President does not get specific. The challenge, like a good pastor's challenge in any sermon, was meant to focus and shape and give purpose to the nation's grief. But offering condolence to the families specifically, and the nation generally, remained the object of President Obama's remarks:

This evening, Michelle and I will do what I know every parent in America will do, which is hug our children a little tighter and we’ll tell them that we love them, and we’ll remind each other how deeply we love one another. But there are families in Connecticut who cannot do that tonight. And they need all of us right now. In the hard days to come, that community needs us to be at our best as Americans. And I will do everything in my power as President to help.

Because while nothing can fill the space of a lost child or loved one, all of us can extend a hand to those in need -- to remind them that we are there for them, that we are praying for them, that the love they felt for those they lost endures not just in their memories but also in ours.

May God bless the memory of the victims and, in the words of Scripture, heal the brokenhearted and bind up their wounds.

And then there was Donald John Trump. Even when appropriate words of consolation or comfort were set before him on the teleprompter, he could not stay on script. He turned every event into something about himself, either bragging about something he claimed to have done or complaining about something that he thought had been done to him. And, even in those moments before he veered off script, he sounded bored, or distracted, or hurried.

COVID-19 would have been a monumental challenge for any President. The virus has proved an enormous challenge for every elected leader in America, at all levels. And all---not just Trump---stumbled and bumbled and fumbled with this challenge, particulary in the opening months of the pandemic. New York Gov. Andrew Cuomo initially sent COVID-19 patients into nursing homes to rehabilitate. It was, after all, a novel virus; no one knew what to do initially. But Gov. Cuomo later emerged with reputation intact, and even enhanced. Was it all "media bias"?

No. Cuomo in New York, and Gov. Pritzker in Illinois, and other leaders at all levels around the country could summon empathy and convey sympathy, at least to some extent. Not Donald Trump. Even when he got the disease himself. Maybe it was his fear of showing "weakness." Showing weakness may be hazardous to the successful outcome of a negotiation, but there is no way to negotiate with a virus.

President Trump's advisers tried to posture him as a 'wartime president' leading a war against this dreaded disease. They had strong precedents to back up their arguments that America would not shun a President in wartime. As Mr. Lincoln said, it's best not to swap horses in the middle of a stream.

And who knows? If they could have gotten him to employ only a few well-chosen, well-uttered words, a dash of inspiration, a touch of empathy, Trump's advisers might have succeeded in getting Mr. Trump reelected. In the history of our Republic, only two presidential candidates ever have received more than 70,000,000 popular votes. One of these, of course, is President-Elect Joe Biden. But the other is Donald Trump.

The outcome of the 2020 presidential election is clear---but it was a close-run thing. Relative handfuls of votes in Pennsylvania, Nevada, Georgia, Michigan, and Wisconsin were determinative. And history will judge that the Trump Administration's response to the COVID-19 pandemic was its downfall. Certainly there are a number of approaches that the Trump Administration might have taken---approaches the Trump Administration refused to take---tactics it might have employed, scientists it could have listened to. Still, even if his advisers were right about the limitations of the power of the national government in this health crisis, Trump might have at least tried appealing to the better angels of our nature. But he did not. Perhaps he could not. Mr. Trump never understood, much less embraced, his role as pointifex maximus. Now Mr. Biden will have his chance.

Wednesday, November 11, 2020

Annual Diversity Scholarship Foundation Unity Gala goes virtual for 2020

The Diversity Scholarship Foundation has announced that its Annual Unity Gala will be a virtual event.

The event is set for Tuesday, December 8. A "Virtual Networking Reception" will begin at 5:00 p.m. The program will follow at 6:00 p.m.

The DSF will confer its Unity Award on outgoing Supreme Court Justice Tom L. Kilbride. According to the Foundation's announcement, "This award is presented to a superlative individual who has tirelessly promoted diversity and inclusion in our profession and worked toward uniting diverse communities through action."

Supreme Court Chief Justice Anne M. Burke will recieve the Hon. Laura Liu Access to Justice Award. The Foundation says that this award "celebrates an outstanding individual who has actively promoted access to justice and worked towards a more equal and transparent system of justice."

The Foundation will also recognize six individuals as "Advocates for Diversity," persons who have "actively advocated and promoted diversity and inclusion in the legal profession." The six persons chosen for this honor are Pamela Sakowicz Menaker, Alejandro Menchaca, Circuit Court Judge Lewis Nixon, incoming Circuit Court Judge Jill Rose Quinn, Associate Judge Rouhy Shalabi, and Abigail Sue.

The annual administration of the DSF's Oath of Unity will be given to all bar presidents by Cook County Circuit Court Chief Judge Timothy C. Evans. And, of course, the DSF will confer 21 scholarships to law students throughout the 7th Circuit.

The Unity Gala is the principal means by which the Foundation raises money for its scholarship program. Tickets to attend the event are $150 each and may be obtained at this link. A Bronze Sponsorship may also be obtained at that same link, for $1,500. Many additional sponsorship opportunities are also available. A brochure explaining these opportunities can be accessed from the link in this sentence.

Numbers keep going up, but that's not the only change

In a press release issued yesterday, the Chief Judge's Office announced that another five employees and two residents of the Juvenile Temporary Detention Center had tested positive for COVID-19.

As of yesterday, then, "a total of 149 employees working under the auspices of the Office of the Chief Judge have tested positive for COVID-19, plus eight judges. This is out of a total of about 2,600 employees and 400 judges. The staff cases include 64 JTDC employees, plus 49 JTDC residents."

That works out to about six percent of the Chief Judge's workforce and two percent of the judges. But that's three more judges and 34 more employees in the Chief Judge's Office who have 'caught the Covid' since I last reported numbers here, on October 25.

Meanwhile... the State as a whole reports new record numbers of COVID-19 case nearly every day. On October 25 it seemed alarming that the State had reported 6,161 new cases.

That's not even half of the 12,623 cases that the State reported yesterday.

But the State is reporting figures differently now.

I first found out about this in a Tweet from @CWBChicago...

(I don't think @CWBChicago is looking to reposition itself as a go-to health news cite, but when I actually can remember where I stumbled across useful information, I like to give credit.)

An explanation for the reporting change was offered in this IDPH press release:

Following Centers for Disease Control and Prevention guidance, beginning November 6, 2020 and going forward, IDPH will report confirmed cases and probable cases combined. A confirmed case is laboratory confirmed via molecular test. A probable case meets clinical criteria AND is epidemiologically linked, or has a positive antigen test. If a probable case is later confirmed, the case will be deduplicated and will only be counted once.

The problem arises because the state does not also report cases according to the former method, at least for a transitional period. As we try and decide whether we should ratchet up our collective panic-meters still another notch, it would be helpful to compare apples with apples. Here are the IDPH numbers since the last FWIW post on the subject:

It looks like the numbers were trending rapidly upwards before "probable" cases were added to the daily totals along with "confirmed" cases. So things really are getting worse. How much worse? We are about to start the ninth month of our two-week shutdown; that should be bad enough for anyone without any number fluffing....