Who knew what, and when? A look inside the Cook County Democratic Party's decision to withhold its endorsement of Judge Toomin's retention bid

• The Chicago Council of Lawyers released its ratings of Cook County jurists seeking retention on Tuesday, September 15;
• On Monday, September 14, the Cook County Democratic Party Central Committee voted to withhold its endorsement of Judge Michael P. Toomin's retention bid.

The newspapers were concerned---and alarmed---about why Judge Toomin was denied the Party's endorsement. Was he really dumped for the reasons stated -- or was Judge Toomin targeted in retaliation for his decision to appoint a special prosecutor in the Jussie Smollet case?

And that's a valid question. But I had another one.

According to Evanston Township Committeeman Eamon Kelly's report for the Party's Judicial Retention Committee (JRC), "the Committee began its review of Judge Toomin after learning that at least one bar association had found him unqualified."

How could the Democratic Party's JRC find out about a negative evaluation before any ratings were released?

Persons unfamiliar with the judicial evaluation process may not realize, but the evaluation process is highly confidential. Lawyers and judges contacted by JEC members must have confidence in the confidentiality of the process in order to speak candidly about a candidate. Bar association Judicial Evaluation Committee members take an oath not to reveal what is discovered during candidate invesitgations or interviews. The results of an evaluation are communicated to the candidate, but not released publicly, not right away.

There are two reasons for this. First, the bar associations have long taken the position that revealing all the ratings at once, close in time to the particular election (whether primary, general, or retention election), maximizes the potential persuasive impact of those ratings on voters. Whether this is actually the case is beyond the discussion here.

The second, and more pertinent, reason for not publicly disclosing judicial evaluations as soon as they are issued, is that every bar group allows a candidate to appeal a negative rating. Bar groups sometimes revise their initial findings. That process, too, is highly confidential.

Kelly's JRC report mentioned that "at least one bar association" had given Toomin a negative evaluation. A negative bar rating is included in the 2018 Cook County Democratic Party bylaw as part of the definition of "good cause" allowing the Party to withhold its retention endorsement.

But... since it wasn't publicly available... how did the Democratic Party JRC know about any negative rating?

In an interview with FWIW earlier this week, Committeeperson Kelly explained that the members of this year's retention class had agreed to self-disclose any negative bar ratings to his JRC. While Judge Toomin did not report any negative ratings intially, Kelly said, when he heard "rumors" that Toomin had indeed received a negative review, he contacted Hanah Jubeh, the spokesperson and political consultant for the retention class, and inquired. Jubeh thereafter provided confirmation of the one negative rating, along with documentation that had been provided in support of Judge Toomin's appeal of that rating.

An appeal which, by the way, was ultimately successful.

In a separate interview with FWIW, Jubeh explained that, when she was retained to assist the retention class in July, she and the class agreed that it would be helpful to be "proactive" with groups monitoring the retention process, including the Cook County Democratic Party and the Injustice Watch website.

Jubeh confirmed that Kelly had asked for early disclosure of any negative ratings for any retention class member but, she said, the class did not agree. Some individual members, perhaps two or three, did advise Kelly's JRC of their negative ratings, but the group as a whole did not.

Kelly called Jubeh, Jubeh said, specifically asking her about the rumors he had heard concerning Judge Toomin's negative evaluation from one bar group, and asking for confirmation. She relayed Kelly's request to Judge Toomin, and he agreed to this disclosure and to provide the materials submitted in support of his appeal to that bar group.

"We thought we had good grounds for an appeal," Jubeh said.

Which, apparently, they did, inasmuch as the bar group in question did reverse itself.

Sun-Times columnist Mark Brown, reporting about the Party's decision evening, said it was the Chicago Council of Lawyers which had given Toomin the adverse rating. Kelly and Jubeh confirmed Brown's reporting on this point to FWIW, with Jubeh also confirming that the Council's decison to reverse itself, and issue a favorable rating to Toomin, took place this past Saturday. Except that the Council has confirmed to FWIW that the favorable appeal decision was made on Thursday, September 10.

Either way, the timing was apparently unfortunate.

Jubeh said she thought she had reached an understanding with the Party that the Party's JRC would not recommend withholding an endorsement from any retention candidate who had unanimously positive ratings.

Since all the bar ratings have have not yet been publicly disclosed, FWIW cannot confirm this, but neither Kelly nor Jubeh suggested that there were any other unfavorable ratings concerning Judge Toomin other than the since-rescinded CCL evaluation.

But, Jubeh said, the JRC had voted before last Friday to recommend that the Party withhold its retention endorsement from Judge Toomin. And the Party's Executive Committee voted last Friday to accept that recommendation.

Still, at the very least, the CCL had reversed course before Monday's full Central Committee vote. And the Council has told FWIW the appeal was granted on September 10, before the Party's Executive Committee voted.

And none of this answers the question of how Committeeperson Kelly became acquainted with the "rumor" of the negative recommendation in the first place. Kelly himself was vague on this point. Judges gossip, he said; one hears things.

A bar association executive told FWIW there was no doubt about the ultimate source of the rumor: It was almost certianly Toomin himself, the bar executive said.

And, admittedly, it is an explanation that fits the available facts: Judge Toomin went from being the one jurist singled out by the Council for its highest rating, "Highly Qualified," in his last retention bid, in 2014, to an initial rating of Not Recommended for 2020. It would be extraordinary if, under these circumstances, Judge Toomin did not tell someone outside the official, confidential appeals process about this disappointment; in fact, one might expect a person in these circumstances to maybe even complain a little, or even a lot, to colleagues or friends.

And, from there, it could have been off to the races....

Pope Francis periodically decries the gossipy nature of the Roman Curia (he recently called gossip a "worse plague than the coronavirus") -- but if the prelates of the Curia are the world champions of gossip, the judges of Cook County are a close second. There are those who will argue the order should be reveresed.

Committeeperson Kelly clearly might have learned about the Council's initial negative rating from gossipy judges, or other courthouse personnel. There were certainly ways for Kelly to learn about Toomin's rating without any JEC member violating their oath. For what it's worth, on the basis of what I've learned to date, I accept the explanation that Judge Toomin himself, though certainly inadvertantly, was most likely the ultimate source of the rumor that reached Kelly's ears.

I will tell you, though, that I have comments in my inbox about a number of retention judges, claiming to have information about negative ratings received by this one or that one, issued by one bar group or another. Some of these could well be from faithless evaluators. Some could be courthouse gossip, reduced to a proffered comment. Some of these are (almost certainly) made up out of whole cloth. And meanness. You, dear readers, are not seeing most of these.

But there is still a cautionary tale to be told here.

The judicial evaluation process depends on volunteers. Committed volunteers. Persons willing to do the thankless work of calling sources, reviewing candidate documents, or interviewing candidates. Persons stepping forward will hopefully have an interest in improving the quality of the judiciary generally, not a specific partisan or political point of view or policy agenda. But such persons cannot necessarily be identified in advance and they certainly can't be excluded on suspicion alone. So a committed group with an agenda, whether of policy or politics, can infiltrate the process and potentially skew a particular bar association's evaluations. They can be best countered, and outweighed, by large numbers of persons interested only in the betterment of the bench coming forward to assist. Interested lawyers meeting that description should contact the Judicial Evaluation Committees of any bar groups to which they belong. Step up and help out.