Reforming the judicial retention process

In the Sunday Chicago Tribune, there was an editorial entitled “Firing Bad Judges” about the fact that no judge has lost a retention race in the past 22 years, including Judge Cynthia Brim, who was recently found not guilty by reason of insanity in a misdemeanor battery case.  The editorial outlined two proposed amendments to the Illinois state constitution which purport to fix this problem.

From the Tribune:

Two Illinois lawmakers have proposed changes to the state constitution that would make it easier to hold judges accountable. The amendments, sponsored by Rep. Kelly Cassidy and Sen. Bill Cunningham, both Chicago Democrats, aren’t identical, but they share much in principle. The lawmakers have discussed collaborating on a measure to present to voters in 2014, so this is a work in progress. But there’s a lot to like already…Both proposed amendments call for an independent and rigorous review to sort the competent from the questionable. Under Cassidy’s plan, candidates would be vetted by 11-member commissions in each circuit or appellate district. Six of the members would be non-lawyers, appointed by ranking statewide officers and county officials from each party. The other five would be lawyers elected by registered attorneys in the circuit or district.

Judges who earned approval of seven or more members would automatically get a new term; the rest would have to stand for retention or leave. That would produce a shorter, more meaningful ballot that essentially said to voters: These judges haven’t done a good job. Are you sure you want to keep them?

Cunningham would assign the review process to the state’s Attorney Registration and Disciplinary Commission. His plan would require judicial candidates to be certified before they could be appointed, run for election or seek retention. Only the candidates found qualified could appear on the ballot.

Cunningham says he’s essentially trying to codify the bar associations’ evaluation process. Those groups do a thorough and transparent job of identifying judges who ought to hang up their robes, but it’s a challenge to get the message to voters. Both proposed amendments would take the review process further by reflecting the findings on the ballot.

Under Cunningham’s proposal, sitting judges would need a “yes” vote from 66.6 percent of voters instead of 60 percent, a requirement that would make a big difference all by itself.

The incompetent judges identified by the bar associations — or in the Tribune endorsements, which rely heavily on those ratings — typically fare worse than other judges on the ballot. In November, Brim got 183,000 more “no” votes than the judge listed above her, a candidate recommended by the Tribune and bar groups. But she still got 63.5 percent “yes” votes.

Raising the threshold to 67 percent would have knocked her out, along with three other judges who had received negative bar association ratings.

I applaud these attempts to reform the system, and I am happy that some attention is finally being paid to this problem.  But I strongly disagree with these proposed solutions.

To start, the problems that we have with judges originate with how we choose them in the first place:

  • How do they get elected in the first place? It starts with primary elections.  Often, politicians game the system so that a politically connected candidate runs unopposed.  If not, there is a primary with five or six candidates, so that a candidate wins with 22 or 23 percent of the vote.  Many times that candidate is not the best qualified person, but instead someone with a political base or was the first name on the ballot or their name sounded attractive to enough voters (usually, female and Irish).  Virtually all judicial candidates run unopposed in the general election.
  • After that the judge is up for “retention” every six years, and all that is needed is a 60% yes vote.  No judge has lost a retention race since 1990, and very few before that.
  • So, in other words, win a primary with 22% of the vote and you can be a judge for life.

My problem with both of these new proposals is that they would usurp the right of the voters to vote on the candidate of his or her choice, instead allowing some committee to make that determination, by narrowing the field instead.  As a voter, I do not want a committee of politically appointed (read “connected”) people to decide who belongs on the ballot.

Equally bad is any proposal that gives the power to determine who is on the ballot to bar associations or the Attorney Registration and Disciplinary Committee.  And I say this as a 10-year member of the Chicago Bar Association Judicial Evaluation Committee.  Which is not to knock that Committee, or those of the other bar associations.  The CBA JEC members work very hard to vett candidates solely on their qualifications, including legal knowledge, courtroom experience, diligence, honesty, fairness and temperament.  And we explain our ratings in writing.

But our ratings are there to provide information to the voters.  Voters can read our voting guide and make their own decisions.  It would be the height of arrogance to assume that I have any business substituting my opinion for that of thousands of voters.

All we need to do to make it more difficult for bad judges to get retained is to raise the percentage necessary for retention.  The evidence shows that poorly rated candidates do much worse than the other judges, but still get enough yes votes to get over the 60% hurdle required for retention.  And good judges usually get in the high 70s or low 80s.  In my opinion, a minimum retention vote of 70% would be ideal, but I could live with 66.67%.  This would be enough to weed out the worst judges and keep the so-so judges on their toes.

I also suspect that in an age of increasing consumer sophistication and smartphones, that people will be better equipped to make decisions about judicial elections in the future, which means that an incremental change in the retention process now will likely produce optimal results in the future.

What are your thoughts?

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