Judicial Selection - A Hispanic Perspective
David A. Cerda
The high cost of some judicial elections,particularly for state supreme courtseats, has fueled cries to replace judicial elections with appointive systems. Critics suggest that appealing to lawyers, corporations,and political parties for campaign funds is unsavory, if not unethical, and will lead to the distrust, if not the corruption,of the judiciary.
The ABA’s Standing Committee on Judicial Independence has responded to this recent criticism and is drafting a report and recommendations for judicial merit selection in state courts. Although well-intended, replacing judicial elections with appointive systems will create more,and more secretive, opportunities for undue influence over judicial candidatesand sitting judges.
The cries to replace judicial elections are based on the false premise that judicial screening panels will weed out corrupt judges. Ironically, however, of the 16 corrupt judges caught in the Greylord scandal in Chicago, 13 had been found "qualified" or "highly qualified" by the Chicago Bar Association. Clearly, screening panels cannot easily determine who is or is likely to be corrupt.
Asking for Trouble
On the other hand, taking the power to elect judges from tens or hundreds of thousands of voters in an open election where campaign donations must be disclosed,and giving that power to a handful of judicial selection commissioners selected by politicians, i.e., governors and legislators,is asking for trouble. The campaigning for judicial seats, which is now relatively open, would be taken behind closed doors. A judicial candidate need only get the nod from a bare majority ofa small commission to be selected a judge. Coalitions on the committee could easily be formed when a chosen candidate needs to get the nod. Votes for candidates could easily be traded back and forth between commissioners and out of the public spotlight. Judges appointed under this system could be reminded to help the persons who put them on the bench; not the commissioners themselves, but perhaps the politician who appointed the commissioner, or the commissioner’s client, law partners, or friends. Judges up for retention may feel pressure to make or avoid making certain decisions. This kind of undue influence would be hard to uncover.
Moreover, judicial screening panels are not likely to increase the number of people of color appointed to the bench. For example, in Cook County, Illinois, associate judges are appointed by circuit court judges.Candidates for associate judgeships are screened by bar associations. Separately, a committee of circuit court judges screens candidates (taking into consideration bar ratings) and presents a ballot of candidates to the full circuit. Too few minorities have been appointed under this system. "Qualified" African Americans, Hispanics, and Asians have been overlooked. Who a candidate knows is the most important factor in these appointments.
The elimination of judicial elections will also rob people of color of a needed avenue to the bench just as more minority populations are growing and more minorities are being elected to the bench. Given the ongoing debate over merit selection, the political reality is that judicial elections are not likely to be eliminated soon, if ever. There is, however, an immediate need to improve current judicial elections.
First, bar associations should ask newspapers to publish a "Guide to Judicial Elections" the day before and the day of judicial elections. This guide would look like a spreadsheet and publish a judicial candidate’s name (with footnotes for those candidates who have changed their name), the candidate’s age, year admitted to the bar,education, employment profile, whether the candidate was ever sanctioned by the Illinois Attorney Registration and Disciplinary Committee (with footnotes), and whether the county board of elections has found the candidate in compliance with its filing requirements regarding campaign fund disclosures and other matters (with footnotes).The guide should then list the latest judicial evaluations, if any, from bar associations and the newspaper itself.
Enforce the Rules
Second, bar associations should file complaints to enforce the codes and rules of professional and judicial conduct. Generally, judges should not hear the cases of campaign donors. Candidates who misrepresent their record or promise to make future decisions if elected should be subject to discipline. In Chicago, there is good news and bad news on this front. The good news is that the Chicago Bar Association withdrew its "qualified" rating for a judicial candidate after that candidate aired a misleading commercial about another candidate, who is well regarded and a friend of the CBA. The bad news is that the Chicago Bar Association has not withdrawn its "qualified" rating for a candidate who failed to disclose that he was twice criticized for prosecutorial misconduct by the Illinois Appellate Court. That candidate, with many influential friends in the CBA, is now an associate judge.
History has given people of color reason to distrust appointive systems and bar associations’ recommendations to eliminate judicial elections. Rather than working to eliminate judicial elections, the ABA should work to improve judicial elections.
David A. Cerda is a plaintiff ’s civil rights and personal injury attorney and a former president of the Hispanic Lawyers Association of Illinois.