Five suggestions to improve judicial evaluations and judicial primaries

A very strange, and hopefully unique, primary season is almost past -- there are still vote totals to finalize, and at least one judicial race left to decide -- but, while memory is yet green, we need to discuss what changes are needed so that the process will be better next time out.

My top five suggestions, in order from easiest to accomplish to hardest, are as follows:

1. We must jettison ratings of Qualified and, especially, Not Qualified.

If you, dear reader, have a valid Illinois law license, you are eligible to be a judge. The 1970 Illinois Constitution (Art. VI, §11) expressly provides, in pertinent part:

No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him.

For most people, eligible and qualified are essentially interchangeable words. If one is eligible for something, it is because that person possesses the requisite qualifications.

We lawyers parse words for a living. So we know that qualified can also mean specially trained or particularly competent. Qualified therefore means more than merely eligible.

However, in our legal system, there is no one recognized course of training for judges. Good judges come from many and diverse backgrounds. Also, and unfortunately, there is no certain way to predict in advance which lawyers will make good judges. Some persons with seemingly stellar credentials have made poor judges.

So the distinction, while valid, is not necessarily useful as applied to judicial candidates.

Expressed as a negative, it is even less helpful.

Judicial wannabes who fail or refuse to participate in the bar association screening processes are automatically rated Not Recommended. To my ear, and I think to many, Not Recommended does not mean not eligible. It means only that, because a candidate has not participated, the bar groups can not recommend the candidate for judicial office.

Not Qualified, on the other hand, strongly implies not eligible, at least to the lay ear. And it is presumptuous in the extreme for a bar group to say that a candidate is not eligible when the Constitution expressly says otherwise. At the very least, Not Qualified sounds worse than Not Recommended, and that is a terrible thing to do to a person who has voluntarily submitted his or her credentials for the intrusive screening process.

This is the easiest fix to implement because each bar group that needs to can do this on their own.

2. Bar evaluations should be released on a rolling basis.

This, I think, is another easy fix.

The bar groups do tremendous work contacting candidates, soliciting candidate participation, and, ultimately, investigating and interviewing and issuing evaluations for judicial candidates.

Joyce Williams, who coordinates the Alliance evaluation process, and Therese Kurth, who performs that function for the Chicago Bar Association, both do yeoman work in collecting and processing candidate questionnaires, organizing investigations and interviews, and managing the information generated. But the bar groups do not release that information to the public until early voting gets underway.

The reason for this is that the bar groups believe that this information will have the most impact if it is released only when all the evaluations are complete and as close as possible to the start of voting. And it is generally accepted that most voters don't think about their choices in judicial elections until the very last minute.

Of course, this year, news of the COVID-19 pandemic increasingly crowded information about judicial evaluations out of the news columns and public consciousness.

God willing, nothing like that will happen in 2022.

But early voting starts earlier and earlier each election cycle. Waiting until the last evaluation is complete means that some voters will go to the polls without knowing for certain which candidates have what ratings. (Candidates can and do publish their ratings on their campaign websites, and in their mail pieces, and anywhere else they can. But I have not published ratings until the bar groups have put them out. It's not that I think any judicial candidate would misrepresent their ratings -- but, without confirmation, I have so far refused to publish.)

Even though I realize that all the ratings can not be completed until shortly before the primary, I think the public would be better served if ratings were put out on a rolling basis. FWIW can still do the "grids" and the roundup posts close in time to the primary -- when most voters start looking for information -- but ratings, whenever published, are newsworthy. And in every election cycle it would be helpful to dispel rumors and outright lies about this candidate, or that one, being slammed by this bar group or that one. You didn't see the many comments along these lines left in my comment queue. But they were in my inbox, and I'm sure they were circulating elsewhere as well.

This is a relatively easy fix as well particularly inasmuch as I believe each bar association can release its ratings as it chooses.

3. Bar ratings need to be standardized.

Many bar groups have two positive ratings; other have only one. The Chicago Council of Lawyers has three (Qualified, Well Qualified, and Highly Qualified). The Chicago Bar Association has two positive ratings for candidates seeking election to the bench, but only one for those applying for Associate Judge.

As noted above, the first thing I'd like to do is change "Qualified" to "Recommended." That's not the kind of standardization I'm talking about here.

Should we all the bar groups have one positive rating? Two? Three?

I've been trying to get on the bench (with, obviously, zero success) since 1993. Over the years I've been screened and re-screened by the several bar groups on many occasions. During that time, I can attest from personal experience that some bar groups have changed from two positive ratings to one. In 2001, for example, on one of the many occasions that I applied for Associate Judge, I was rated "Highly Recommended" by the Women's Bar Association of Illinois. The WBAI dropped that rating some years ago. Conversely, I believe, though I won't swear to it, that others may have gone from one positive rating to two.

It's easy to see both sides here. After a candidate is interviewed, the members of each bar association judicial evaluation committee (JEC) vote on whether or not to recommend that candidate. Each group has its own rules but, generally, any candidate must get a certain percentage of positive votes in order to achieve a positive rating. If a high enough percentage of the voters rate the candidate positively, the candidate is deemed Highly Recommended.

Groups that have gone away from multiple positive rates have noticed that, if even one Pollyanna was in the room on a given evening, a lot of candidates might be found highly rated. The impact, for good or ill, of any single evaluator is clearly ameliorated by having more evaluators -- but one of the reasons that the Alliance groups banded together in the first place is that JECs are always in need of members. JEC work takes time and commitment. There are easier ways to pad a résumé. So, for groups concerned about unequal ratings being given out depending on which committee members show up on any given night, it makes sense to drop down to only a single positive rating.

On the other hand, having multiple positive ratings may be a good way to raise an association's profile, not just among judicial candidates but with the public at large. Being able to provide more than one positive rating may be an inducement for members to join a JEC. And, if having a super-positive rating encourages the electoral prospects of that group's members, that might be a side benefit.

For the public, which isn't tuned into the finer points of bar evaluations, I suspect that it may be confusing when one group issues a Highly Recommended Rating while another says that Recommended is its highest possible rating.

Right now, a majority of the bar groups issue two (or more) positive ratings. With the caveat that I'd like to see all the bar groups beef up the ranks of their JECs, I think it would be best if every bar group offered two positive ratings.

This is a more difficult reform because the various bar groups would have to agree among themselves.

4. JECs need training to develop common standards for evaluation of judicial candidates.

There are now 12 Alliance bar groups. With the Chicago Bar Association, that's 13 different groups issuing ratings for judicial candidates. It makes no sense to have all these groups if they are not permitted to differ in their opinions. But there is no consensus or coordination among the groups as to what makes a good judicial candidate.

Many groups are concerned about a candidate's experience with "complex" litigation -- but is there any shared understanding as to what is, or is not sufficiently "complex"? Why does "recent" experience matter more than the totality of a career? Why do some bar groups find it problematic when a candidate has only civil law experience or only criminal law experience? (When I was a baby lawyer, I saw for myself how some judges in DuPage and McHenry Counties had both civil and criminal cases on their calls. But that was a long time ago now -- and never, over the course of my career, have Cook County judges been obliged to do this kind of double duty. A judge without criminal law experience might be assigned to a criminal courtroom -- but not without resources, such as a bench book, or the assistance of colleagues. And a newbie judge from a criminal law background might receive a civil assignment, too. But, chances are, a newer judge coming over from the criminal court would have the opportunity to get his or her feet wet on the 11th floor or in some other Municipal courtrooms; he or she would not be hearing medical malpractice jury cases on Day One.)

Because of the confidentiality of the judicial evaluation process, JEC members don't necessarily have a lot of opportunity to share their experiences or concerns or questions.

Here's where a CLE course or two in predicting performance on the bench might be very handy. The bar groups could make it mandatory for JEC members -- and free, too, at least for persons committing to serve on a JEC for the coming year (which might be a good way to pick up some new members). And the courses could serve as a great clearinghouse for the exchange of ideas, for coordination, and for standardization. There would still be 13 voices in the choir, but they might be singing from a common hymnal.

Clearly, this would be a tougher reform than the first two. Not only would the many bar groups have to agree that a CLE for JEC members is a good idea, a course or two would have to be designed and pass muster with the MCLE Board. But it could be very helpful, for the bench and bar and public alike.

5. Judicial primaries must be made nonpartisan.

This would be the toughest fix of all.

The General Assembly would have to implement this reform -- and reform and Springfield don't always go well together in the same sentence.

On the other hand, what kind of a crazy world is it where we have allegedly nonpartisan primaries for the Mayor of Chicago and Chicago City Council -- but partisan primaries for judges?

Now, inasmuch as the Democratic Party has huge majorities in both the Illinois House and Senate, I suppose it doesn't hurt to emphasize that switching to nonpartisan primaries in Chicago municipal elections did not exactly lead to a Republican renaissance in our fair city. And there is no reason to suppose that this would that happen in the County Cook generally if judicial races were also made nonpartisan.

But, from my perspective, the real benefit is that we would no longer disenfranchise Cook County primary voters who fail to take a Democratic ballot. Also, if we go to a jungle primary system for judicial races, we might have more contests in the November general election. That's when the most voters come out.

If we're going to have judicial elections, we should find a way as many voters as possible to participate in them.

But, right now, the truth is, in Cook County, nearly every single judicial race was decided in the Democratic primary. There are no Republican judicial candidates in Cook County except for one judgeship each in the 12th and 13th Subicrcuits. With those two exceptions, when Cook County voters go to the polls in November, they'll have exactly no opportunity to say in who serves in our courts. How does that inspire confidence in our courts?

In races for Chicago alderman, if no candidate receives a majority in the primary, the top two finishers face off in the general election. Why not do that with judicial elections, too? There were several judicial races this year (as in every year) where the winner in a multi-candidate race achieved nowhere near an actual majority of the votes cast. It would be tough on those candidates to have to face off against their nearest challenger again in November. But it would surely increase interest among voters in general. It might even spark some interest in the media.