04.21.10 An age-old debate exists about effect of politics in the judiciary
April 21, 2010
By Bethany Krajelis
Chicago Daily Law Bulletin staff writer
The debate about what role politics plays in the judiciary has been the subject of countless academic papers, public polls and legislative battles ever since the American judicial system was created.
With more money making its way into judicial elections, many experts predict that concerns about judicial independence will continue.
Though the process of electing judges is usually pointed to as the problem that requires reform, there isn't as much of a consensus when it comes to exactly what changes need to be made in order to solve the age-old debate.
Some say removing money from the process through public financing or limits on campaign contribution will fix the problem, while others argue in favor of merit selection, judicial appointments and performance commissions.
Perception versus reality
Malcolm C. Rich is the executive director of the Chicago Appleseed Fund for Justice, which is the research arm of the Chicago Council of Lawyers, a not-for-profit organization that he also leads. Both groups advocate for the fair and efficient administration of justice.
Rich said that, regardless of which reform proposal you might support (he's for performance commissions and thinks public financing could also be beneficial), the solution must include a plan to improve the public's perception of the judiciary.
"You can't have real justice until you have an appearance of justice," Rich said.
Dawn Clark Netsch couldn't agree more. Netsch, a former state comptroller and lawmaker, is a professor emeritus at Northwestern University School of Law and member of the Illinois Campaign for Political Reform's board of directors.
Referring to a 2005 ICPR survey that showed about 85 percent of those polled believe politics affects the decision-making process of the state's judges, Netsch said she is "frightened" by the public's loss of confidence in the judiciary.
"If the public doesn't have faith, we've lost the battle," said Netsch, who has been advocating for the merit selection of judges since she served as a delegate to the 1970 Constitutional Convention.
As president of the Illinois Judges Association, Christian County Judge Ronald D. Spears said he's heard a wide array of opinions from his fellow judges when it comes to the topic of judicial election reform.
Spears said the last thing judges want is for the public to perceive them as being unfair and dependent on the political process that elected them. He said he thinks lifetime appointments would give judges the most independence, though he acknowledges others strongly disagree.
"Perception is just as important as reality sometimes," Spears said.
More money, more problems
After playing home to a 2004 election that made history for being the most expensive state high-court race in history, Illinois has seen big bucks flow into its judicial races. Many experts predict that as long as the cash continues to come in, concerns that those donations will influence judges will follow.
"It's all about the money," Rich said.
In support of his opinion, he pointed to a 2003 study conducted by the Chicago Appleseed Fund for Justice titled "Electing Judges in Cook County: The Role of Money, Political Party and the Voters."
Rich said the study shows that the creation of subcircuit elections in 1992 made unslated candidates realize that money could beat slated candidates. According to the study, the amount of money spent in judicial campaigns in Cook County increased from an average of $7,400 per race in 1988 to more than $30,000 in subcircuit elections and nearly $20,000 in countywide elections in 1992.
Spears, who was elected to the Christian County bench in 1994, said money is definitely the force driving the calls for reform.
Though the issue has been around for some time, Spears said the discussion was spotlighted in 2004, when more than $9 million was spent in the race to fill the Illinois Supreme Court's 5th District seat.
Pointing to that race, Netsch said, "It is exactly that type of behavior that is bothering people."
Public financing
After Rod R. Blagojevich was kicked out of the governor's office last year, lawmakers and reform groups unleashed a flurry of measures aimed at cleaning up Illinois' government.
Even though Gov. Patrick J. Quinn signed a measure this year that puts first-ever limits on campaign contributions, David Morrison, the associate director of the Illinois Campaign for Political Reform, said it fell short of what needed to be done.
On the bright side, he said, the new law includes a provision that provides for the creation of a task force to study public financing for judicial races.
Public financing systems, which are used in more than two dozen states, allow candidates the option of getting money to cover the cost of their campaigns from a state-operated fund.
The ICPR has supported public financing in judicial races for years, contending it could help calm the public's concern that campaign cash can buy a judge's loyalty.
"We're thinking public financing could be a way to get through what seems to have stalled," Morrison said of the ongoing push for judicial election reform. "We'll just have to see if the task force helps get through the blocks and see if we can find a way to make it work."
Merit selection
For nearly 50 years, Netsch has been a strong supporter of merit selection, a process that would put the selection of circuit and appellate judges in the hands of the Illinois Supreme Court, which would get recommendations from a nominating commission. Netsch remembers when she and other Con-Con delegates were able to forge a compromise to put a question about judicial elections on the ballot for voters to decide. But the voters didn't decide to change the election process.
Though the Illinois State Bar Association has historically supported legislation for a merit-based selection process, these proposals have never made it too far in the Illinois General Assembly, said Netsch, who pushed for the change during her nearly two decades in the Statehouse.
"The effort has not been that strong in the past few years," she said. "It needs somebody who is passionate about it."
Netsch is not sure what it is going to take to make merit selection a reality in Illinois, but she said that former U.S. Supreme Court Sandra Day O'Connor's public support for merit selection sure is helping to get the issue more attention.
By appointment
Though Netsch said she thinks a system of appointing the state's judges would be elitist, Spears said it would ensure judicial independence.
"I think you get the ultimate amount of independence if you have a lifetime appointment," Spears said, referring to federal judges, who are appointed to lifetime positions behind the bench.
Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals agreed, saying that "state judges should have the same job security federal judges have."
"As soon as you have people run on a party ticket, it becomes a political process," said Posner, who has written extensively about judicial independence and political ideologies, including in a book titled "How Judges Think."
He said other states have adopted the federal appointment process. In Massachusetts, he said, judges are appointed through a process that puts the decision in the hands of the governor.
Performance commissions
Rich said his organizations - the Chicago Council of Lawyers and the Chicago Appleseed Fund for Justice - would love to see the creation of performance commissions in Illinois. Though the details vary depending on the state, the performance commission model basically appoints a commission to evaluate judges seeking retention. Rich said having such a commission in Illinois would help provide voters with information for retention, which doesn't garner much voter attention or research.
"We think at some point outside groups are going to say not only can their money influence the election of the Illinois Supreme Court, but that kind of money can be used to influence retention elections," he said. "That's a concern for us."
Rich said his group's Judicial Performance Commission Pilot Project will assess the qualifications of judges in the 1st District who are seeking retention in the November 2010 election. The process includes both surveys and personal interviews, Rich said.
"The bottom line is one judge affects thousands, sometimes tens of thousands, of people every year," he said. "If one bad judge gets retained to sit in juvenile court, how many will that judge affect in a negative way?"
Judicial evaluations
Rich said he would also support public financing as a way to get more information out to voters, specifically through a Web-based voter guide.
"People will pay attention if you get an easy voter guide online," he said, adding that out of frustration from the 2004 state Supreme Court race, he started www.voteforjudges.org to provide voters with information on judicial candidates.
As the chair of the Chicago Bar Association's Judicial Evaluations Committee, Larry S. Kowalczyk said judicial evaluations provide voters with a powerful and necessary tool. Kowalczyk, a shareholder at Querry & Harrow Ltd., said the CBA has been doing some form of judicial evaluations since the late 1880s. The CBA committee conducts their evaluations from questionnaires and interviews and then votes on the candidates or judges seeking retention to rate them as highly qualified, qualified or not recommended.
While lawyers may be more familiar with the CBA evaluations, Kowalczyk said he believes the group does a good job of reaching the general public by providing voting guides on its Web site. The CBA is also working on putting up more information to help candidates understand the evaluation process.
Kowalczyk said over the years, more local bar associations and groups like Rich's have been doing their own evaluations, which he said he highly respects.
"Anything that helps to ensure the integrity of the judiciary is a good thing," he said.
Partisan versus ideological politics
Even if Illinois eventually agrees to reform its judicial election, Spears said he wouldn't count on the debate ending anytime soon.
"Judges are human. They have their own life experiences that influences their decisions," he said. "You can't get rid of those life experiences, or we'd have computers putting decisions out."
Spears said the importance that these experiences play in the decision-making process is the reason why the judiciary pushes for diversity on its bench.
Carolyn E Shapiro, an assistant professor at Chicago-Kent College of Law and a former law clerk to Posner, said it is the mystery of why judges decide the way they do that has kept professors so interested over the years.
Shapiro just finished an academic paper, "The Context of Ideology: Law, Politics and Empirical Legal Scholarship."
"Judges have their lives. They have their priors. They have perspectives and experience," she said. "They are human beings, so of course they are going to be influenced by those things, but a good judges is one who tries to be aware of that." Shapiro said there is an important distinction to make between partisan politics and political ideologies.
"In my view, I don't think judges are political," she said. "I think it's more about their ideologies."
Posner agreed, saying, "Partisan politics is not important to judges, but ideology clearly influences decisions."
He said the ongoing debate about politics in the judiciary continues to garner attention because the court is responsible for deciding cases on controversial issues such as abortion, religion and guns.
Spears said the issue of politics on the court has "certainly given academics an opportunity to study us judges over the years."
"The debate will continue," he said. "We know what we want, but the question remains as to how we will get there."