Illinois High Court Embarrasses Itself Again; Reform Needed

The Illinois Supreme Court recently refused to terminate the law license of convicted felon and former powerhouse Chicago alderman Edward Burke. The justices may well have done so because Burke played a role in putting several of them on their judicial benches. The judicial selection process in Illinois needs change.

Here is how the system worked for decades: The Cook County Democratic Party appointed a Judicial Nominating Committee, which for many years Burke chaired. The committee endorsed candidates for coveted nomination to circuit, appellate and supreme court positions. In Cook County, this was tantamount to election. Even Burke’s wife came up through the system, ending her career recently after a term as chief justice of the Illinois Supreme Court.

The judicial nominating committee operated, in effect, as a patronage mill. If, for example, a Democratic state legislator gave yeoman, loyal service to the Party’s interests, he or she could be nominated to the appellate (or other) bench, serve a couple of years, and retire with a pension double that of a lawmaker. This engendered party discipline as well—if you wanted a judgeship, toe the party line.

In the recent situation with Burke’s law license, at least four of the seven justices recused themselves. The court won’t tell us which ones.

To recuse means to withdraw from a case because of a possible conflict of interest or lack of impartiality. Based on recent history, the justices appear to recuse themselves when they shouldn’t (Burke’s license was an open and shut case), and not recuse themselves when they definitely should.

The latter case is illustrated by a 2016 decision when the court, by a 4 Democrat to 3 Republican majority, rejected 600,000 petition signers, who wanted to see the question of independent redistricting put on the ballot, which the Illinois Constitution allows.

The Democratic Party of Illinois was chaired in 2016 by former House Speaker Michael Madigan, a zealous opponent of anything that might have taken away his control over partisan redistricting. The Democratic Party of Illinois had contributed a total of $2.5 million to Justice Tom Kilbride, who authored the tortured, nonsensical opinion that denied voters the opportunity to decide the issue.

Worse, the lawyer arguing the case before Justice Kilbride and the 4-3 Democratic court majority was Michael Kasper, Treasurer of the Democratic Party of Illinois! Obviously, Kilbride, and probably the other Democratic justices as well, had a responsibility to recuse themselves from the case, out of blatant conflict of interest and lack of impartiality.

But they didn’t. As a result, Illinois has today arguably the most gerrymandered state legislative districts in the nation, with 2-1 Democratic majorities in the House and Senate; fair, independent mapping would likely make the partisan apportionment closer to 1-1.

I can’t help but compare the recent recusal of a high court majority, in order to avoid offending Edward Burke, as an illustration of omerta (Mafia code of silence) in deference to one’s godfather.

No judicial selection process is perfect, whether election on a partisan or nonpartisan basis, or appointment by governor or legislature. Yet, the atrocious flaws of partisan election exhibited in a one-party system (Cook County) cry out for reform.

There will be a statewide referendum in 2028, required by the Illinois Constitution, to determine if voters want a new state constitutional convention. Unfortunately, the only way to avoid such a possible convention from being dominated by the Cook County Democratic Party, which gave us the present system, is to mount yet another petition drive to put independent redistricting on the ballot in 2026. Nobody ever said democracy (with a small “d”) was easy in Illinois.

Nowlan is chair of the Judicial Fairness Project, which evaluates judicial practices. He is a former Republican member of the Illinois House, state agency director, senior aide to three governors, and professor. His latest book is Politics—The Starter Kit: How to Succeed in Politics and Government (2023).