It’s Time To Change Judicial Selection Process

It is becoming a familiar story – even a boring, tiresome story.

Every year in December, the American Tort Reform Association issues a report calling attention to the worst judicial jurisdictions in the U.S. – jurisdictions which ATRA determines are “judicial hellholes.”

As a former member of the ATRA board of directors – chairman of the board, even – I know the review that leads to the ranking is thorough and fair and honest.

The “judicial hellhole” description may seem strong, even harsh, but it is accurate.  The description is assigned to those legal jurisdictions in the United States in which fairness and common sense do not prevail.  These are jurisdictions in which balance – and supposedly justice – are determined by judges (and maybe, but rarely, by juries) after listening to the pleadings of both sides.

Illinois is a perennial home of one, usually two, and sometimes even three “hellholes.”  Madison and St. Clair counties have winning streaks going; they are almost always in the top ten, as they were this year (ranked sixth, jointly).  Cook County, that legal cesspool at the opposite end of I-55, is on the “watch” list this year, which means it is not a full-blown hellhole but close enough among the thousands of legal jurisdictions in the United States to make the ATRA news release.

The quality of courts – and the fairness of courts – is primarily determined by the quality and the fairness of the judges.  If the judge is “bought” or “crooked,” chances are the judgments in his or her courtroom will be suspect.  If a good, honest and clean judge is practicing in a “suspect” jurisdiction, his or her performance can be viewed as tainted too, regardless of whether the judge was a choir boy or flower girl in earlier years.

The quality and integrity and fairness and honesty – and probably many other descriptive words – of judges is largely determined by who the judge is, and how he or she is selected and placed in that seat of supposed wisdom and fairness.

In Illinois, we elect judges.  We elect them as Republicans or Democrats.  We elect them as if they are running for county commissioner or park district commissioner or library board member, except that they are not as well known as the candidates for park district or library board or school board because they appear on the ballot in November when we are voting for a President (maybe a Governor), Members of Congress (and maybe a U.S. Senator) state senators, state representatives, maybe county commissioner or county board chairman, and so on and so on.

And the judicial candidates – the ones who are lumped at the bottom of the ballot and whom we know nothing about but maybe know a name – they are being elected too.

A number of states elect judges, but few do so with the potential for disaster and corruption that Illinois has.

And results should not be surprising.

Why are  25% of the asbestos cases in the United States filed in Madison County, Illinois, where .008% of the U.S. population lives?  Is it because the plaintiffs’ attorneys know they have a good chance of winning, or arriving at a favorable settlement?  And do the defense attorneys know they can  win handsome fees by coming to some agreement with the plaintiffs?

It is time to shake up the court system in Illinois – particularly the way we select our judges.

When the current Illinois Constitution was ratified more than 40 years ago, voters were given a choice of voting for judges, or installing some other process.  They chose to vote for them.

With that history, it would be difficult to move away from election of judges.

But we can improve it.

First, let’s move judicial elections to the Spring, when we elect school board members, park district commissioners, and other offices.  Let’s not lump judges at the bottom of a November ballot that is jam-packed with candidates for President, Governor, Congressperson, State Legislators, County treasurers, etc. --  all people who spend a lot of money so voters know who they are.

Second, let’s establish a process in which judicial candidates are screened BEFORE they qualify for the ballot.  Let’s have a bi-partisan screening panel established in every judicial district in Illinois that is charged with evaluating candidates for the judiciary BEFORE they get on the ballot.  The bi-partisan screening committee should be equal numbers of lawyers and non-lawyers, and  an equal number of Democrat and Republican appointed members.

And to assure bi-partisan agreement that a candidate is qualified to be on the ballot, let’s require an eight-member screening panel  (four Democrats and four Republicans) to cast at least six votes in favor of putting the candidate under review on the ballot.

Voters will do a better job if they have qualified candidates to elect.