Cook County Democratic Party withholds endorsement from two retention candidates

In the Old Days, going back at least to the days of Richard Daley I, the support of the Cook County Democratic Party for judges seeking retention was automatic -- even for those originally elected as Republicans.

In 2018, however, the Cook County Democratic Party adopted a new bylaw (Article VI, Sec. 5) which provides:

The Executive Committee of the Cook County Democratic Party shall have the authority to recommend to the Central Committee whether to withhold endorsement from any judge(s) on the retention ballot, upon good cause shown by any member(s) of the Central Committee. “Good cause” may include consideration of bar association, peer and other ratings and reviews; public proceedings before, or discipline and sanctions imposed by, the Judicial Inquiry Board or the Illinois Supreme Court; a vacancy in office as defined by the Illinois Election Code; and misconduct bringing the office of judge into disrepute. The Central Committee may adopt, in whole or in part, such recommendation not to support retention.

Today the Cook County Democratic Party withheld endorsement from two judges seeking retention this November. One is Judge Mauricio Araujo. The Judicial Inquiry Board is pursuing a complaint against Araujo before the Illinois Courts Commission. He currently is assigned to administrative duties (or, as it is more colloquially stated, he is languishing in "judges' jail").

Michael P. Toomin is the other judge that the Democratic Party refused to endorse.

Toomin has served on the bench since he became an associate judge in 1980. He was elected to the Circuit Court in 1984, as a Republican, to a suburban vacancy (in the days before subcircuits, Cook County judges were elected countywide, or from the City, or the suburbs).

Alice Yin's Tribune story about the snub is entitled "Cook County Democratic Party says it won’t endorse judge who appointed special prosecutor in Jussie Smollett case." The implication of the headline, and the lede, notwithstanding, Yin's story notes that the Democratic Party denies that its decision has anything to do with Smollett or the impact that that case may have on the reelection prospects of Cook County State's Attorney Kim Foxx.

In the Sun-Times, Mark Brown's column, Judicial politics isn’t child’s play — or is it? Democrats link call to dump judge to juvenile justice, not Jussie Smollett," quotes Mayor Lori Lightfoot as being "deeply concerned" about the Party's decision:

“The optics of this are terrible,” Lightfoot said. “It looks like retaliation.”

Of course, for anyone who may have recently landed on Earth, Mayor Lightfoot is no fan of Cook County Board President (and Cook County Democratic Party Chair} Toni Preckwinkle.

For the record, this is what Evanston Township Committeeperson Eamon Kelly, the Chair of the Democratic Party's Judicial Retention Committee, said in his report to the full Central Committee about Toomin (footnote in original):

The Committee also recommends that Cook County Democratic Party oppose the retention of Judge Michael Toomin, the presiding judge of the Cook County Juvenile Justice division. This recommendation is based on my investigation which concluded he does not show continued fitness to serve as the presiding judge of the Juvenile Court division.

As background, the Committee began its review of Judge Toomin after learning that at least one bar association had found him unqualified. Thereafter, I initiated an investigation that included review of relevant records, interviews with attorneys and advocates familiar with Judge Toomin; an interview with Judge Toomin; and a conversation with Judge Toomin’s presiding judge, Chief Judge Tim Evans.

Based on this investigation I recommended, and the Committee unanimously agreed, that the Democratic Party of Cook County should not support Judge Toomin’s retention. My recommendation was particularly influenced by multiple interviews with Juvenile Justice advocates. I confidentially interviewed multiple advocates—including two law professors, a foundation leader, and several attorneys from legal-aid clinics. These advocates described Judge Toomin’s temperament as “imperial,” “obstructionist,” and “not collaborative.” They universally opposed Judge Toomin’s retention as presiding judge on the grounds that he lacked the appropriate temperament to lead the Juvenile Justice courts, is obstructing efforts at reforming the Juvenile Justice courts and pursues an outdated approach to juvenile justice.

In this regard, Judge Toomin is admittedly influenced by his own experience with the juvenile justice system. While attending New Trier High School Judge Toomin was part of a group of boys that stole a police car. He credits his interactions with the juvenile court system and his subsequent service in the U.S. Marines as life changing. During his interview, however, Judge Toomin did not recognize the multiple privileges that allowed him to successfully navigate the juvenile justice system—as a white male, from a privileged community and the son of an attorney—which privileges are not available to most of the children before the Juvenile Justice division.¹

As a concrete example of Judge Toomin’s outdated approach, advocates pointed to Judge Toomin’s collaboration with the Chicago Police Department to establish a mock court to scare children into better complying with a Chicago Police Department diversion program. Under Judge Toomin’s plan, the Chicago Police Department could direct children that had been diverted from the Juvenile Justice courts into “scared straight” court appearances. The hearings were designed to give the impression of a court hearing. Concerns with this program include that the Court had no jurisdiction over the children or basis to order them to appear, and under the plan the children would appear in “court” without a lawyer. The mock court was fortunately shut down quickly when the Chicago Mayor’s office directed the Chicago Police Department not to participate further in the program.

Likewise, advocates and policy makers identified Judge Toomin as responsible for blocking Cook County from participating in the Redeploy Illinois program. This program provides Illinois counties grants to divert children from the state juvenile detention system to community-based settings. Judge Toomin in his interview suggested others were also responsible—but multiple policymakers and advocates familiar with the matter identified Judge Toomin as primarily responsible for blocking the implementation of the program in Cook County.

It is important to note, some criticisms leveled against Judge Toomin in the media were not corroborated by my investigation. For example, Judge Toomin was publicly criticized for refusing to allow hearings on emergency motions for detention release for several weeks early in the COVID pandemic. While that criticism was well founded, the published accounts were incomplete. Judge Toomin did block these hearings for several weeks, but he did so only after working with the public defender’s office and states attorney to proactively release as many children from the Juvenile Detention center as they could identify. On balance a public defender I spoke with criticized his handling of the detention hearings but gave him credit for his overall response to COVID including the proactive effort to release kids from detention where possible.

Moreover, there are other countervailing factors, including Judge Toomin’s notable judicial career beyond the Juvenile courts. Judge Toomin is also extremely diligent and smart; and is well liked by former and current judges with whom he has served.

On the other hand, I find it relevant that Judge Toomin continued after his election as a Republican in 1984 to support Republican candidates for political office by donating to candidates including to Bruce Rauner and Mitt Romney, in his campaign against President Barack Obama (as well as occasional Democratic candidates such as then States Attorney Anita Alvarez). It is my firm opinion that partisan identification, without more, should never be considered in retention decisions. However, given the nature of his judicial assignment, I view Judge Toomin’s continued contributions in these high-profile races and to these specific Republican candidates, together with the other information I gathered, as some evidence that he ascribes to a Republican philosophy that we oppose.

Considering all the information gathered during my investigation, including my interview with Judge Toomin, I recommended and the Committee unanimously agreed that Judge Toomin should not be retained so long as he continues to serve as the presiding judge of the Juvenile Justice division.

¹ When asked the difference between him and kids in the juvenile justice system today---Judge Toomin identified only “economic problems” explaining that jobs were plentifully available to him as a result of a “different time” as compared to now when there is “a lot of gloom.”

Kelly's report does not specify which bar association turned thumbs down on Judge Toomin's retention bid, but Mark Brown writes that it was the Chicago Council of Lawyers. However, Brown says, the Council "reversed itself over the weekend and now supports Toomin’s retention." For what it's worth, in 2014, when he last came before the voters for retention, the Council gave Toomin a "Highly Qualified" rating. Toomin was the only judge to earn that rating from the CCL in the 2014 retention election.