Judicial Selection - An African American Perspective
Sidney A. Jones, III
The Illinois Judicial Council, an organization of mostly African American state, federal, and administrative law judges, has carefully considered the issue of the so-called merit selection of judges for many years, and prepared the report, "The Relative Merits of Appointive and Elective Systems of Judicial Selection," in 1987. The circumstances and the degree of controversy surrounding this issue has changed little since that time except for the more recent election of judges from judicial sub-circuits throughout Cook County.
Although there have been many different proposals for the appointment of judges, their proponents argue chiefly that any such plan will elevate great legal scholars to the bench and decrease the role of politics in judicial selection. Both assumptions are pretextual and wrong.The proponents simply believe that only they are qualified to select judges and that only they know the identity of lawyers who can be entrusted with deciding the legal fates of all litigants, rich and poor.
As to the first issue, there is simply no evidence that demonstrates any significant variation in the quality of the judges or the courts, regardless of the selection procedure that brings judges into office. To the contrary, not a single jurisdiction has perceived any desire or need to eliminateor reduce its appellate bench on account of increased quality of judges at the trial level. Indeed, the trend has been to substantially increase the number of appeals courts across the country, particularly on the federal level where all Article III judges are appointed by the president only after rigorous screening by the American Bar Association, the Federal Bureau of Investigation, and countless state and local bar groups. The decisions of U. S. District judges still get reversed at rates similar to state court judges, no matter how the state court judges are selected.
The major argument—decreased political influence—has to do with the extent to which the body politic is reduced in size in order to increase quality and political independence. Certainly, nobody can argue against the development and maintenance of a high-quality and independent judiciary. On the other hand, quality and independence are by no means inconsistent with having a bench on which members reflect the identity of the community from which they are selected and are expected to serve.
Throughout the history of our country, the right to vote has been so vigorously fought for by the Civil Rights movement that African Americans can only be expected to distrust any system that takes away that right. This is even more so when such a system so drastically reduces the input of the public and necessarily restricts that input to a vastly smaller and more cohesive social,economic, political, financial, and legalelite. In short, this means the "establishment." The black legal community wellremembers that in the presidency of Jimmy Carter, a Democrat, not a single lawyer of color was forwarded for nomination to the federal bench by then-Democratic Senator Adlai E. Stevenson, Jr. This was on account of the "merit" system created by the Senator having found that there were no black lawyers or black state judges qualified to be a U. S. District judge. Preposterous, indeed. The black community could only have been left with the impression that the senator’s selection process was more interested in elitism than quality, and this is precisely the reason for which appointive selection plans continue to draw vehement opposition in the black community and among its lawyers.
A similar concern is that the public knows little about judicial candidates,and, especially on a crowded urban ballot, one can be elected to a judgeship because of an Irish-sounding name or because of gender, even though such a person may not be at all qualified. Of course, no distinction is made between this perceived phenomenon in judicial elections on one hand and legislative and executive elections on the other. Ever since Watergate, the public has tragically become increasingly suspicious of all candidates running for anyoffice, and the percentage of Americans who vote has fallen dramatically. Still,only candidates for judicial office are restricted by any rules limiting their campaigns, and judicial candidates can only promise to uphold the law honestly and fairly. Yet, in spite of distrust and lack of knowledge of the candidates,there are no similar proposals to devise commissions to appoint legislative and executive office holders. Why not?
The answer can only be that we, the people, will always insist on elected legislative and executive branches to serve us. The very history of our country is based on the desire to be governed by consent rather than to be ruled by decree. Why on earth should society permit the executive and legislative branches of government to select judges to protect the people from the possible abuses of these executive and legislative branches? Perhaps that part of our society that has been most victimized by brutal legislation and executive action would be the most distrustful of having the right to vote to elect and retain judges taken away. African Americans are most familiar with legally instituted gimmicks to restrict their right to vote—the poll tax, literacy testing, gerrymandering, and now, "merit" selection. We won’t have it.
The judicial branch of governmentplays a very important role in a free society. The independence of the judiciary is paramount in maintaining law and order and the appropriate constitutional balance of power between the executive, legislative, and judicial branches of government. The liberty of each individual citizen is threatened when that balance is not appropriately maintained. The election of a few less-than-stellar individuals to the bench is a risk, to be sure. However, it is far better to accept the risks of democracy thanthe tyranny of aristocracy. When the vested social, economic, political, financial,and legal elite is given the right to appoint judges, tyranny will not be far behind. Black people know this, even if appointive selection proponents do not.
Sidney A. Jones, III is a judge in the Circuit Court of Cook County, Illinois, Chancery Division. He is a member of the Judicial Council of the National Bar Association and the Cook County Bar Association.