Selecting Judges

Selecting judges in Illinois by election and retention has always been, I believe,  an awkward process. We simply don’t know much about the candidates. There must be  a better way. 

Take the case of Illinois Supreme Court Justice Thomas L. Kilbride of Rock  Island, who seeks retention in his post after completing a 10-year term as the 3rd District’s  justice, which includes this newspaper’s circulation area. To be retained, Justice Kilbride  will need a positive vote of 60 percent of those who vote on the question. 

A few months back, I wrote that the justice would be challenged by business and  medical groups for his vote to invalidate a law they basically wrote, which put a cap on  pain and suffering awards for victims of medical malpractice.  

Should a justice be retained or not on the basis of a single decision out of scores,  maybe hundreds over a 10-year period? I think not. 

But how to evaluate a justices’ performance? We can’t be expected to pore over  his votes and opinions, even if we could understand the issues. 

Fortunately, there are some informed sources of guidance for voters. I checked  with the Illinois State Bar Association, the society of lawyers, and they are preparing two  separate evaluations of candidates for the bench, including Kilbride. 

First, the bar group sends out questionnaires to all attorneys in the 3rd District,  asking if they would recommend or not recommend his retention. Only the responses of  those attorneys who say they have knowledge of a professional nature of the justice are  recorded. The questionnaire asks about impartiality, integrity and legal ability, among  other qualities. A 65 percent vote for recommendation is required before the candidate is  “recommended.” This represents the lawyers’ position, and not that of the state bar. 

Then the bar association does its own evaluation. They ask candidates to submit  lengthy questionnaires, after which they are interviewed personally by members of the  association. This results in the bar association’s decision to recommend or not  recommend retention. 

All of this will be available at www.isba.org, click on “public” and then “judicial  evaluations.” The results are not in yet but will be posted in the coming weeks. Of course, lawyers have their biases as much as do the rest of us folk, so the bar  evaluations are not without their flaws. Nevertheless, the observations are better  informed than the blank slates of the general public. And don’t expect the campaign ads  to be illuminating. 

Newspaper endorsements provide another source of informed opinion. The  editorial boards of the major newspapers bring the candidates in for interviews and often  render judgments about whom should be elected or retained. 

Is election and retention the best way to select our judges? After all, federal  judges are appointed to life terms by the President with the consent of the U.S. Senate,  and the federal judiciary generally has much higher prestige than do state courts.

Thirty-four states use a system patterned after that in Missouri, in which non partisan judicial commissions of lawyers and non-lawyers forward a short list of names to  the governor, who has 60 days to select one of them. The selected judge then stands for  retention one year later, so we’re back to the same problem we have in Illinois.  

The Missouri Plan, as it is called, has its critics. Minority groups, which can be  underrepresented in the judicial commissions, sometimes feel they are disenfranchised. I would still feel better if judges were appointed for me by a somewhat objective  panel of knowledgeable students of the judicial candidates. Then if retention elections  were required, I would generally defer to the state bar association and newspaper  evaluations, imperfect though they may be. By the way, to change from elective to  appointive judges would require a constitutional amendment, which is not likely  forthcoming from the legislature, some of whom think their names would have a name ID  advantage on a judicial ballot. 

There is no perfect way to select judges, but the better informed those doing the  selecting, the better.