Monday, January 15, 2007

About selecting judges in Illinois

The first announcement of candidacy for 2008 was made in Illinois last week and no, it did not involve Sen. Barack Obama. His may come this week.

What happened last week was an announcement by a newly-appointed Appellate Justice in the Fifth Judicial District who indicated as his appointment was announced that he would seek election to a full term in 2008. There's nothing unusual about that and we'll comment on that race a little lower in this commentary.

Several judicial vacancies have been filled recently, the latest by the Supreme Court at the recommendation of Justice Lloyd Karmeier. Within the past few weeks, the Court also has filled three vacancies in the Third Judicial District, confirming judges nominated by Justice Thomas Kilbride.

The Illinois Constitution gives the Supreme Court the authority to fill vacancies created in all Illinois courts (including the Supreme Court itself). Traditionally, vacancies in the appellate and circuit courts are filled when the Supreme Court accepts the recommendation of the justice who was elected from the district in which the vacancy occurs.

It's not the worst system of filling judicial vacancies, but it's not the best either.

In fact, Illinois' system of selecting judges -- including filling vacancies -- is in need of major repair.

Presently, we are one of 14 states that select judges through partisan elections. In Illinois, judges get on the ballot the same way candidates for state representative or county sheriff get on the ballot. They circulate nominating petitions to compete in the partisan primary elections and the winners of the primaries (Democrat vs. Republican) square off in a general election. The judicial part of the ballot is at the bottom and is frequently ignored -- in part, most likely, because people know little about the candidates and we no longer have straight-ticket voting in Illinois.

Because we treat judges as politicians for election/selection purposes, and because Illinois has virtually no limits or restrictions on political campaign contributions, the cost of judicial elections has been creeping up.

"Creeping" is an understatement. The cost of judicial elections in some areas and for some judicial positions has been soaring.

In the last two judicial election cycles, Illinois set what are considered to be national records for (1) the most expensive Supreme Court race (Karmeier vs. Maag in 2004); (2) the most expensive Appellate Court race (Stewart vs. McGlynn in 2006); and (3) the most expensive Circuit Court (trial court) race (Hylla vs. Weber in 2006).

At the risk of appearing biased (we'll take the risk), we'll put the blame for the escalation of costs squarely on the shoulders of the plaintiffs' bar.

For years, trial lawyers have been the largest -- in some races the only -- significant campaign contributors. It made sense for several reasons, including the fact that the trial lawyers have so much at stake in who is wearing the black robes and because they generally have plenty of money to invest in their hand-picked candidates.

And by controlling -- or at least strongly influencing -- the election process, they have been able to influence (control?) the court room process.

The serious escalation in judicial election spending, at least in Illinois, came when the business community and doctors and common citizens decided they didn't like what was happening in court rooms so they chose to get involved, including financially.

There's a news commentary from the Southern Illinoisan this weekend calling for campaign finance reform. It specifically refers to the 2004 Supreme Court race.

There also is an editorial from the Bloomington Pantagraph calling for campaign spending limits.

But the editorial commentary this past weekend that is most significant was in the Belleville News-Democrat commenting on the appointment of Judge James Wexstten of Mt. Vernon to the Fifth District Appellate Court.

By all reasonable standards, Judge Wexstten has been an excellent judge. He has been elected chief judge by his peers, he has served as president of the Illinois Judges Association, and he was overwhelmingly retained (73%) by the voters in the Second Circuit last November.

The News-Democrat commended Justice Lloyd Karmeier, a Republican, for selecting Judge Wexstten, a Democrat, to fill the vacancy and Wexstten announced that he does plan to seek a full term, which means he may face a Democrat primary challenge.

And the editorial suggests that may be Wexstten's biggest problem because he is viewed as a moderate and has been supported by -- heaven forbid -- the Illinois Civil Justice League (ICJL).

Another news item included favorable comments from new Appellate Justice Bruce Stewart and the spokesperson for Illinois Democratic Party Chairman Michael Madigan so perhaps common sense might prevail.

The ICJL and JUSTPAC, our political action committee, won't take positions on 2008 elections until 2008 but the prospect that a highly qualified judge may have political problems in a partisan primary election is a strong argument for Illinois to stop electing judges and enact one of several systems of "merit selection" that many states use.

The solution to cutting spending in partisan judicial elections is (1) don't have partisan elections and (2) don't even have elections.

Judges should be appointed. If Illinois voters say "yes" to the call for a Constitutional Convention next year, that could be the most important reason.

Cross-posted by Ed Murnane at Illinois Justice Blog.

To read or post comments, visit Illinois Justice Blog.

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