Chicago Sun-Times urges "yes" vote on Judge Michael P. Toomin -- but is troubled by the reversal rates of four others

The Chicago Sun-Times came out last week with an endorsement of Circuit Court Judge Michael P. Toomin's retention bid. In its editorial, which noted that Toomin "is supported by all of the major bar associations," the Sun-Times said, "we want to emphasize how important it is for voters to stand up for integrity in our local politics and competence on the judicial bench by casting a 'yes' retention vote for Michael P. Toomin."

On Sunday, the Sun-Times published an article by Injustice Watch's John Seasly, "Appeals court reverses this judge more than any other in criminal courts seeking retention" (the link here is to the Injustice Watch site). Yesterday, the Sun-Times came out with an editorial, "Before voting to retain Judge Kenneth J. Wadas, consider his troubling record."

Newspaper editorial boards are amazing. The same editorialists that thought bar association ratings were important, when building the case for Judge Toomin, casually dismiss the favorable ratings given to Judge Wadas: "There’s a good argument Wadas, though approved for retention by all the major local bar associations, never should have been elected to the bench in the first place in 1996."

For what it's worth, Toomin, although targeted for defeat by the Cook County Democratic Party, is recommended favorably for retention by the Chicago Bar Association and all of the Alliance bar groups except the Black Women Lawyers' Association. Wadas is endorsed by the Cook County Democratic Party for retention and is rated favorably by both the CBA and all of the Alliance bar groups. Toomin and Wadas are both "Highly Recommended" by the Suburban Bar Coalition.

Three other judges were the subject, along with Wadas, of another October 11 Injustice Watch story by John Seasly, "4 judges, 6 years, 98 reversals — and they want you to vote to keep them in office." The judges named are Margaret Ann Brennan, Patrick J. Sherlock, and Anna Helen Demacopoulos.

Each one of these judges is also rated favorably for retention by the Chicago Bar Association and every one of the Alliance bar groups. All three are "Highly Recommended" by the Suburban Bar Coalition as well. Each of these three judges has been also endorsed for retention by the Cook County Democratic Party.

Readers may wonder about the seeming disconnect between the favorable ratings awarded these four judges and the 'troubling' number of times their decisions have been reversed in the Appellate or Supreme Courts. Don't the bar associations know about these?

The answer is, yes, the bar groups do know about those cases in which a Circuit Court's decision was subject to appellate scrutiny. Why? Because the bar groups ask.

The Chicago Bar Association questionnaire for sitting judges seeking retention asks specifically (emphasis in original):

List each Supreme or Appellate Court citation, or attach a copy of the opinion, for all cases heard by you that have been reviewed during the last six years[.]

The Alliance questionnaire asks a virtually identical question:

List citation for each Supreme or Appellate Court citation, for all cases heard by you that have been reviewed during the last six years (or ten years for Appellate candidates).

The bar association screening process depends on self-disclosure. This is true for all candidates, from first time judicial hopefuls to Supreme Court justices seeking retention. In theory, of course, a retention candidate might fail to disclose a case in which he or she was reversed -- but that would be a suicidal course. Judicial evaluation committee investigators take their very responsibilities seriously and, with computer research tools like Lexis or Westlaw at their disposal, fact-checking a candidate's list of cases for accuracy or completeness is much less arduous than it would be otherwise.

Retention candidates are even required to highlight for the screening committees any cases in which they were specifically criticized. From the Alliance retention questionnaire (emphasis in original):

Have your judicial rulings ever been commended or criticized by a reviewing court? Please state “Yes” or “No”.

*

If yes, supply, herein, the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.

The CBA retention questionnaire makes a similar request (emphasis in original):

Has your judicial conduct ever been commended or criticized by a reviewing court? _____ If yes, supply in a separate attachment the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.

While Mr. Seasly and Injustice Watch may be commended for their effort in calculating and reporting which judges have experienced the most reversals, it is safe to say that these disclosures did not come as news to the bar groups that evaluated the judges seeking retention. In other words, the bar groups knew about the reversals but, following their investigation into the circumstances---and case citations are often (though not always) absent from the Injustice Watch coverage---the bar groups were not 'troubled.'

It may be argued that bar groups are, generally, 'kinder' to judges seeking retention than they are to first-time aspirants or unconnected hopefuls. (I know many FWIW readers have expressed that view; I've made that argument myself.) But no human institution is perfect.

And just because a bar group does not get its dander up about a judge's track record on review does not mean that a judge's reasoning or rulings in a given case were not faulty, or even foolish. But regardless of one's view of the validity of the 'balls and strikes' analogy between judges and baseball umpires, statistics alone do not tell the whole story about a judge.

The fact is that every trial judge gets reversed from time to time. Certain types of cases, such as criminal cases where convicted defendants wind up in jail, are more likely to prompt appeals than others. Thus, as Seasly's article notes about Judge Demacopoulos, "Her reversals [largely] came from her time hearing felony criminal cases at the Markham courthouse." Judge Wadas has spent nearly the entirety of his career in the Criminal Court.

If determining the law were always easy, we wouldn't need judges at all, or if we did, because some wicked or obstinate people refused to follow the clear mandates of the law, we wouldn't need many. And we wouldn't need appellate courts either, because trial judges would always get it right. Count on this happening the same day that unicorns begin grazing in your backyard. So, in real life, there will be times where smart, hard-working judges miss an issue that an appellate court sees as dispositive. Some judges will perform better in some assignments than others, and the reviewing courts will provide a vital backstop to ensure justice in a given case. Sometimes an appellate court can be wrong. Usually I think that when an appellate court fails to reverse the erroneous decision of a trial judge -- and I filed the brief with the white cover. I have a point of view that stems from my rooting interests.

So does Injustice Watch. That does not mean that the group's reporting should not be respected and appreciated. But one need not go all a-flutter just because Injustice Watch reports information already taken into account by bar groups before reaching conclusions not shared by Injustice Watch.

Before being 'troubled' by this judge's record, or that one's, consider the point of view of the group presenting the rating or the information. And your own as well.