Debate over merit selection continues; recusal, public financing proposals pushed in meantime

By Bethany Krajelis | Sep 27, 2012

Thies Although an Illinois State Bar Association (ISBA) committee is working to come up with recommendations on judicial recusal standards, the bar group has long history of supporting merit selection.


Panelists at BGA judicial reform event. Young is second from the left.

This is the final installment of a three-part series on judicial elections. The first two stories discussed arguments in favor of judicial reform, as well as the role campaign contributions plays in the debate.

Although an Illinois State Bar Association (ISBA) committee is working to come up with recommendations on judicial recusal standards, the bar group has a long history of supporting merit selection.

ISBA President John Thies said merit selection –- a system to select judges without elections-- would take the money and politics out of judicial elections, something that could help improve the public's perception of the judiciary.

Under the ISBA's merit selection proposal, a bipartisan nominating commission would recommend three names for each circuit and appellate court vacancy.

The Illinois Supreme Court, which would not be included in merit selection, would make the final appointments. Judges appointed under the system would then face voters every six or 10 years in order to be retained to the bench.

While the ISBA has introduced merit selection proposals in the General Assembly over the past few decades, they've never gained the support needed to make it out of the legislature alive.

That's probably because lawmakers are aware of the huge hurdle they would need to jump in order to change the state's judicial selection process, as well as the political consequences of taking away their constituents right to vote.

Given that judicial elections are written into the Illinois Constitution, voters would need to approve a constitutional amendment in order to move to a merit selection system.

Merit selection history

When the nation first formed, judges were selected on merit and appointed, the process that remains to be used in the federal judiciary.

Many states moved to an election system over the years, but with more money making its way into judicial elections in the past decade, some states are switching back to merit selection.

In 1970, when Illinois' current constitution was adopted, voters were asked to choose between the partisan election of judges or merit selection.

Although voters in several counties, including Cook, favored merit selection, it lost on a statewide vote to partisan elections.

The ISBA's support for merit selection can be traced back to the early 1950s, said ISBA Associate Executive Director David Anderson.

He said the group's support for merit selection started shortly after the so-called "Missouri Plan" was put in place.

Missouri adopted its merit selection system in 1940. It governs the selection of trial and appellate court judges in counties that opt into the system.

Although other states have used the Missouri Plan as a model to create their own merit selection systems, it has received some opposition over the years.

In November, voters in Missouri will be asked if they want to change the process by giving the governor an additional appointee on the judicial nominating commission and increasing the number of nominees from three to four.

Missouri is one of about three dozen states that select at least some of their judges through a merit selection or appointment process.

While about the same number of states let their voters chose some of their judges, Illinois is only one of a handful or so states that elects all of its judges through partisan elections.

The debate

Thies expressed his support for merit selection at a Better Government Association (BGA) panel on judicial reform earlier this month in Chicago.

The amount of campaign donations that have gone to judicial campaigns over the past decade, Thies said, has left voters across the nation with concerns over judicial independence.

Thies said the U.S. Supreme Court's opinion in Caperton v. A.T. Massey highlighted the importance of the public's perception, which was one of several reasons why he created a special ISBA committee to explore judicial disqualification standards.

Having standards on disqualification would help alleviate some of the public's concerns over money and independence, but Thies said a merit selection system would go even further.

Former Cook County judge and Illinois lawmaker Anthony Young, however, told attendants of the BGA panel that the selection process for judges in Illinois doesn't need to be reformed because it isn't broken.

He said he supports the election of judges, especially when it comes to those in sub-circuits. Adopting a merit or appointment system in Illinois, Young said, would decrease diversity on the bench.

Young said that merit selection would also take away the voters' right to choose and would not necessarily eliminate politics from the judiciary.

Pointing to the ISBA's proposal, Young questioned how the process wouldn't be political when politicians would be the ones appointing members of the judicial nominating commission.

Thies said that the ISBA proposal calls for the attorney general to appoint half of the members and let the next highest-ranking state official from the other political party pick the rest.

Despite the proposal's attempt to let both political parties nominate members, Young said it would still bring politics into judicial elections while pushing voters away.

Other options

While merit selection is worthy of a discussion, Whitney Woodward, policy association with the Illinois Campaign for Political Reform (ICPR), said the reality is that it's not something that is going to happen overnight.

Because merit selection would require changing the Illinois Constitution, Woodward said her group believes a public financing system for judicial elections is the best way to achieve reform right now.

The ICPR also supports the adoption of judicial recusal standards, as well judicial performance review commissions.

Woodward said creating a public financing system would take money out of judicial elections, the issue that falls at the crux of concerns over judicial independence.

Used in more than two dozen states, public financing systems basically give candidates the option of receiving money from a state-operated fund to cover the cost of their campaigns.

The ICPR has pushed public financing proposals in the legislature for years, specifically for judicial elections.

Woodward said the proposal makes sense in Illinois given the state's history of having record-setting judicial spending.

Justice Lloyd Karmeier and former appellate court justice Gordon Maag spent more than $9 million in their 2004 race for the Fifth District seat on the Supreme Court.

The people and groups that donated to Karmeier's campaign have been the subject of several requests over the years to revisit the court's decision to overturn the billion judgment in Avery v. State Farm.

Although the ICPR's public financing proposal has yet to pass out of the legislature, Woodward said lawmakers on both sides of the aisle have shown support for the idea.

She said a task force to look into the pros and cons of public financing was created in a 2009 law that limited campaign contributions.

And now, as special interest groups continue to get involved in judicial elections, Woodward said "it only demonstrates more of a need for a public financing system in Illinois."

Woodward said when pushing ICPR's public financing proposal, lawmakers often ask how the cash-strapped state would afford funding such a system.

Her response, she said, is that the state funds numerous worthy causes each year and protecting the interests of one of the three branches of government should be considered a worthy cause.

"It is a worthy investment of public resources," Woodward said. "It could remove the appearance of corruption, encourage more candidates to run and help remove the troubling perception of the judiciary."

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