TEST
Article

A Proposal to Select Illinois Appellate and Supreme Court Justices

In Illinois and twenty other states, appellate-level judges are elected by popular vote.1 While this method of determining who will become a reviewing-court judge is not inherently problematic, there has been a decades-long outcry to reform the selection process in the Land of Lincoln and in many other jurisdictions.2

For years, critics have argued that merit selection of judges would produce “an independent, impartial and able judiciary”3 and that the election of judges is, among other things, “bad for business.”4 Within the past decade, experts and voters alike have also criticized the influx of “outside money” into campaigns and the increasingly negative tone to the advertisements that such outside money funds.5

Likewise, many scholars have written about the need for jurisdictions to adopt merit-selection procedures. Some have asserted that such a change is necessary to remove money (campaign contributions and PAC funds) from judicial selection.6 Others have taken issue with requiring judges and judicial candidates to solicit campaign contributions.7 Still others have been critical of requiring judicial candidates to campaign when most judicial canons of ethics prevent a judge from forecasting how he or she would rule on an issue that might come before them.8 Finally, some have argued that the political election of judges and campaign contributions to candidates are impediments to a fair and independent judiciary.9

This article takes the debate in a new direction and looks at voter awareness and understanding of the job qualifications and duties of the justices10 on Illinois’ intermediate and highest appeals courts. The authors’ thesis is that voters either are so uninformed or have been so misled about what Illinois Appellate and Supreme Court justices do that they are not in the best position to select justices to the reviewing courts. This article joins numerous others in calling for a merit-selection system11 to help identify the very best candidates to serve on the State’s highest two courts.

In support of their thesis, the authors created a thirteen-question survey instrument that was administered to 375 Illinois residents between August 2014 and September 2015. The survey was in the form of an anonymous, online questionnaire, and the results are discussed in some detail below. The survey results suggest that Illinois voters are not very aware of the qualifications or responsibilities of the justices on the Illinois Appellate Court and the Illinois Supreme Court. Perhaps it is time to shift the responsibility for choosing the justices from the voters to a smaller group of people who are more aware of those qualifications and responsibilities.

I. Judicial Selection in Illinois

Illinois has selected judges by popular vote since 1948.12 At various times, politicians and others have discussed the idea of the merit selection of judges, but those conversations always stopped short of meaningful action.13

In 1970, the fourth (and current) Illinois Constitution was created as a result of the proceedings of the State’s sixth constitutional convention.14 Within Illinois, that gathering is known as “Con-Con.” 15 The delegates to Con-Con were advised by then-law-professor Charles Joiner to “frame a system . . . which [is] most likely to give the people judges who are well-qualified and impartial.”16 Professor Joiner advised the delegates that there were numerous methods by which judges could be selected, but he also advised that “[n]o system of choosing judges can guarantee that they will be uniformly good.”17 Professor Joiner explained: “Voter knowledge of the candidates and their qualifications is insufficient to form the bases for a rational choice. . . . As a consequence, most people who vote at all do so on the basis of party affiliation or a popular and well-known name.”18 Professor Joiner’s explication notwithstanding, the delegates to Con-Con opted to continue the election of judges as the method of choosing jurists in Illinois. 19

The debate over the best method to select judges in Illinois increased in the 1980s and 1990s, when sixteen Cook County judges were prosecuted as a result of federal investigations called “Operation Greylord”20 and “Operation Gambat.”21 The judges were convicted, along with twenty-six court clerks, several sheriff’s deputies, and fifty-seven attorneys, for crimes including racketeering, bribery, mail fraud, and perjury.22 Reform supporters cited the corrupt judicial system in Cook County as a basis for moving Illinois to a merit-selection system.23 Others argued that merit selection would “bring better qualified attorneys to the bench and provide a more independent judiciary.”24 The reform movement, however, was short-lived.

II. Noteworthy Judicial Contests

Illinois is not the only jurisdiction in which there have been concerns about the election of judges. In West Virginia, the case of Caperton v. Massey involved the role of campaign contributions in judicial elections because a member of West Virginia’s Supreme Court refused to recuse himself in a matter that involved an attorney who had been a major campaign contributor.25 The case was ultimately decided by the United States Supreme Court, with the Court holding that due process required the justice in question to recuse himself because his interest in the matter posed a “risk of actual bias.”26

Similarly, the United States Supreme Court’s decision in Citizens United v. Federal Election Commission27 touched off a storm of criticism about the influence of money in political campaigns, including judicial races. The decision declared unconstitutional government restriction on “independent” political spending by corporations, overturning longstanding precedent allowing the government to regulate such spending.28

As a result of the Citizens United decision, money has poured into political campaigns from organizations like non-profits and unions. This money, frequently referred to as “dark money,” often comes from organizations whose donors do not have to be identified.29 As a consequence, dark money makes it more difficult to determine how a political campaign is funded.30 In judicial elections, dark money has contributed to some of the most expensive—and among the most acerbic—advertise-ments ever seen. Sadly, some of the more controversial ads have appeared in Illinois judicial races.

In 2002, the Illinois Supreme Court race for the seat in the Fourth Judicial District was the setting for an expensive election contest between Republican Rita Garman and Democrat Sue Myerscough.31 Garman had been appointed to the seat when Republican Justice Ben Miller retired. In their election contest, Justice Garman spent nearly $1.1 million to retain the seat for the Republicans and Justice Myerscough, who was then a member of the Illinois Appellate Court, spent $841,000 in a losing bid.32 “Both candidates enjoyed considerable financial help from their respective parties, but Garman also benefited heavily from business and medical groups interested in tort reform, while Myerscough had strong union support.”33 Much of the money the two candidates raised was used for television advertisements, some of which veered far from what justices of a state supreme court would be expected to do. As the Brennan Center for Justice noted, “One of Justice Garman’s ads boasted that she’s ‘tough on crime. She’s worked with police, prosecutors and victims to put violent criminals and sexual predators in jail.’”34 Justice Myerscough echoed similar themes: “Justice Sue Myerscough kept children safe from sexual predators and kept violent criminals off our street.”35 More importantly, “[f]ew of the spots provided information about candidate qualifications. None emphasized the importance of a judge being fair and impartial, or that cases should be decided based on the facts and the law.”36

In 2004, the focus shifted to the Illinois Supreme Court race in the Fifth Judicial District. The candidates were Circuit (trial) Judge Lloyd Karmeier, a Republican, and Illinois Appellate Justice Gordon Maag, a Democrat. The two men were running to fill an open seat in the thirty-seven southernmost counties of Illinois, a judicial district where Democrats outnumbered Republicans.37 As the Brennan Center for Justice explained, “Candidate Lloyd Karmeier (R.) found himself ‘reluctantly draft[ed] by business consortiums . . . in their national battle to reform the practice of class-action lawsuits by influencing key judicial races.’”38 One of the major sub-plots in the Karmeier-Maag race concerned a lawsuit involving State Farm Insurance Company, a suit that was going to be decided by the Illinois Supreme Court after the Karmeier-Maag election.

That lawsuit, Avery v. State Farm, concerned State Farm’s alleged breach of its automobile insurance contracts.39 The jury trial awarded the plaintiffs $1.18 billion, and the appellate court only lowered the award to slightly over $1 billion.40 In the contemporaneous Karmeier-Maag race, business and insurance interests hoping to win a reversal in the Supreme Court donated generously to Karmeier.41

The year following his historic win, Justice Karmeier joined with other members of the Illinois Supreme Court and overturned the $1.2 billion judgment against State Farm as well as a $10.1 billion judgment against cigarette maker Philip Morris.42

The Karmeier-Maag controversy was not put to rest after the Illinois Supreme Court reversed the lower court’s ruling in the State Farm case, however. As the Chicago Tribune reported, a group of trial lawyers dug through the garbage outside Karmeier’s campaign office hoping to find intelligence about the campaign’s financing and operations.43 After the plaintiffs made the futile request that Karmeier recuse himself from the Illinois Supreme Court decision, they appealed to the United States Supreme Court, which in 2006 declined to hear the matter.44 Nonetheless, the United States Supreme Court has since ruled that a judge should have recused himself from a case involving a big political benefactor, noting that no one should be able to “choose the judge in his own case.45

Just when it seemed that the Karmeier-Maag controversy might finally fade into history, Justice Karmeier stood for retention in 2014 after completing ten years on the Illinois Supreme Court. He received 60.4% of the vote in his retention bid; in Illinois, a 60% affirmative vote is needed to be retained.46 Karmeier’s victory was impressive, given that 111 contributors had given Karmeier $309,000, but sixteen trial lawyers gave $2.7 million to the campaign against his retention.47

III. Unintended Consequences

When judicial elections are funded without regulation, it is not difficult to imagine a situation where an attorney appearing before a judge or panel of judges might have contributed to one or more of the jurists’ campaigns. The same is true for the clients whose issues are pending before the court. The likelihood that some party appearing before an elected judge donated money to that judge’s campaign should cause members of our esteemed profession to be uncomfortable, especially because judges and lawyers have long subscribed to an ethical duty to avoid the appearance of impropriety.48

In Illinois, the issue of campaign contributors appearing in cases before members of the bench reached a new level to many court-watchers. On January 3, 2014, the Chicago Sun-Times newspaper ran a story noting that six of the seven Illinois Supreme Court justices had taken some $3 million in campaign contributions from the litigants in a suit challenging the state’s new pension-reform law.49 Then Supreme Court Chief Justice Rita Garman rejected the notion that campaign contributions have any impact on judicial decision making. In the same article, she stated, “I think politics plays no role in any of the issues that we have before us . . . .”50 The former Chief Justice’s strongly-held position notwithstanding, this is cause for concern.

In September 2016, the State-Farm saga reared its ugly head one more time. United States District Judge David Herndon approved class-action status for a case that claims State Farm lied about its financial support of Justice Karmeier “who won election and voted to reverse a $1.05 billion judgment against the insurer.”51 The suit claims that State Farm violated the Racketeer Influenced and Corrupt Organizations Act52 by scheming to defraud plaintiffs who had acquired the $1.05 billion judgment in their suit against State Farm and further claims that the insurance company provided as much of $4 million of a total $4.8 million in campaign contributions to Justice Karmeier’s campaign.53

IV. Public Perception and Understanding of Appellate Judicial Functions

Given the high stakes that are involved when a case reaches the court of appeals or supreme court, the public should be concerned that the people making the penultimate and ultimate judicial decisions, respectively, have outstanding legal ability.54 In election after election, however, there is very little emphasis placed on electing judges who have the best qualifications for the job. Advertisements in judicial races tend to go toward the sensational and avoid matters that voters should know about when deciding for whom to vote.55 The Illinois State Bar Association and the Chicago Bar Association56 have long provided ratings for candidates who seek judicial office, but there is no evidence that the public is aware these polls could play a significant part in a judicial campaign. To the contrary, most of the attention regarding campaign ads by judicial candidates has focused on issues having nothing to do with qualifications for the office the candidates are seeking.

In addition to qualifications to hold judicial office, Illinois citizens should also be concerned that jurists are abiding by the strictest ethical standards when agreeing to decide a case. The public should expect that judicial officer holders will recuse themselves in situations where it is difficult or impossible to separate one’s decision from the relationship that the parties or their counsel have with members of the court.57 Surprisingly, there has been very little outcry from the public on this subject.58

The United States Supreme Court’s decision in Caperton v. Massey59 is one of the few high-profile challenges involving a jurist’s decision not to recuse him or herself. There, the Supreme Court of Appeals of West Virginia reversed a lower court’s judgment, which had entered a jury verdict of $50 million in favor of the plaintiff.60 Five justices heard the case, and the vote to reverse was three to two. But, the impartiality of one justice was questioned because he and a political action committee supporting him had received campaign contributions in excess of $2 million from, and through the efforts of, the board chairman and principal officer of the defendant corporation which had been found liable for the damages.61 The Court held that the basic due process rights inherent in the judicial process had been thwarted in the case sub judice: “[T]here is a serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence . . . by raising funds or directing [a] judge’s election campaign when the case was pending or imminent.”62 The Court then centered the inquiry on the contribution’s relative size compared to the total money contributed to the campaign, the total amount spent on the election, the apparent effect of that contribution on the election.63 Citizens have occasionally complained about the judicial branch of government, in both Illinois and nationwide, but rarely has anyone offered concrete solutions to create a better judiciary. Complaints include concerns about judicial partisanship,64 the state bar association’s advisory ratings of judicial candidates,65 and the need to amend the judicial canons of ethics to specifically include the receipt of campaign contributions as a basis for disqualification of a judge on a particular case.66

A. Survey of Illinois Citizens

Despite the aforementioned concerns, the public has been largely silent about the impact judicial elections have on the integrity of the judicial system. The authors of this article posit that most people really do not understand what appellate-court justices do, nor are most people aware of the specific ethical requirements placed upon judges in Illinois.67 It is therefore difficult for the typical citizen to complain about what might appear to be a ruling that is not thoughtful or that is less than arms-length.

To test this hypothesis, the authors conducted an online survey in which Illinois citizens in all five appellate districts were asked questions about the role of appellate and supreme court justices in Illinois.68 The authors obtained 375 responses from a broad cross section of the State.69

1. In What Appellate District Do You Reside?

The very first question in the survey elicited the most interesting responses. The respondents were asked to identify the appellate district in which they live. As most legal professionals know, Illinois divides its appellate court into five districts, and citizens vote for only those appellate judge candidates running in their respective districts.70 The First District includes Cook County and the City of Chicago.71 The Second District is comprised of the counties in the northernmost part of the State other than those counties in the First District; it includes cities such as Rockford, Elgin, and Naperville.72 The Third District covers “north central Illinois,” including the cities of Kankakee, Peoria, and Rock Island.73 The Fourth District encompasses the middle of the State and includes the cities of Bloomington, Champaign, Springfield, and Quincy, among others.74 The Fifth District covers all of “Southern Illinois,” extending from the Ohio River in the east to the Mississippi River in the west and includes the cities such as East St. Louis, Carbondale, and Cairo.75

Illinois voters also select their Supreme Court justices using the appellate districts; the candidates do not run statewide. The First District elects three members to the Illinois Supreme Court and each of the other districts elect one.76 As a result, it is important for the citizens to know what district they live in and to know which appellate-court decisions were issued by the justices on the court in their district. It is equally important to know whether campaign ads for a judicial candidate in one’s area are actually candidates for whom the voter may vote.

The first question asked in the survey required respondents to identify the appellate district in which the survey respondent resides. The participants were given the five districts and a sixth choice, “[d]on’t know.” Surprisingly, 60.61% of the respondents selected “[d]on’t know.”77

While it may not be crucial to know who your specific appellate or supreme court justices are, it becomes important if one of the appellate court’s panels issues a ruling or a series of rulings that you believe are out of touch with your value system or that might be in conflict with federal law.78 In those instances, you would want to know whether the justices from your district participated in those errant decisions so that you can vote against them when they seek retention. If you know that the Third Appellate District ruled that “X” (a perfectly legal act) is not legal, it would be helpful to know whether you live in the third appellate district and whether that decision applies to you. The fact that such a large percentage of citizens don’t know what district they live in suggests that educating voters and others about Illinois courts has a steep, uphill climb.

It is also important to know which judicial district you live in because the television markets in Illinois cross over judicial-district boundaries.79 A candidate for an Appellate Court judgeship in the Third Judicial District, which includes Peoria County, Illinois, would certainly be expected to run campaign ads on Peoria television stations. Peoria television stations are also viewed in nearby Bloomington, Illinois, which is in McLean County. Bloomington voters would also see the same ads as Peoria voters; however, Bloomington is in the Fourth Judicial District.80 There could be great confusion for citizens who see judicial ads but don’t even know which judicial district is the one in which they reside.

2. In What County Do You Reside?

As a way to capture more helpful information about appellate districts, the survey asked the respondents to name the county in which they reside. All of the respondents were able to answer this question, and their answers allowed the authors to determine if respondents from a particular county or counties were unable to identify their appellate district.81

3. Respondents Who Are Registered Voters

The survey respondents were asked if they were registered voters and, surprisingly, 96.77% of the participants were registered voters. If over 60% of the registered-voter-survey participants did not know in which district they lived, however, the problem might be larger than the authors had first imagined. The ignorance about which judicial district one lives in becomes more pressing if one recognizes that nearly all of the survey respondents are registered voters.

4. Controlling for Bias

The survey asked the respondents if they were attorneys, retired attorneys, judges or retired judges. Out of 372 responses provided for each of these two questions, fifteen respondents self-identified as either an attorney or a retired attorney and three respondents self-identified as either a judge or a retired judge. The survey participants were next asked if any of the respondents had ever had a legal matter presented to either the Illinois Appellate Court or the Illinois Supreme Court. There were 371 responses provided for this question. Eighteen respondents had been parties to cases heard in either the Illinois Supreme Court or the Illinois Appellate Court, and two had been parties to cases heard in Illinois and another state.

This set of questions was asked to determine if the respondents had knowledge about the qualifications and duties of the jurists on Illinois’ higher courts and therefore gave them insight that the average citizen would not have. Lawyers and judges spend considerable time learning and discussing what the job duties and qualifications are for a judge, and they might unfairly skew the survey results. Likewise, someone who had a case adjudicated before either an appellate or supreme court would have superior knowledge about at least a portion of what the courts do with an individual case. In the end, very few respondents had “insider” knowledge.

5. Duties of Appellate Judges

There is surprisingly little written about the job responsibilities of members of state appellate and supreme courts.82 In the 1990s, Professor Bernard Schwartz attempted to focus on the job qualifications of reviewing-court judges as he tried to identify what he termed the “ten greatest” United States Supreme Court justices.83 Even he had to concede that “[i]t may be impossible to say exactly what makes a great [j]ustice.”84 He did, however, summarize the criteria that he and other scholars used (in other, similar lists) to identify their “great justices.” He explained that most legal professionals would refer to writing and intellectual ability as universally cited important traits for a supreme court justice.85

Legal giant Charles W. Joiner86 also tried to capture what most legal professionals expect when choosing a judge. He wrote that while no system of choosing judges can guarantee they will be uniformly good, generally a judge should be impartial, independent, and able to grasp the complexities of the case presented.87

In a tribute to the late Max Rosenn, his colleague, the late Judge Ruggero J. Aldisert (former United States Circuit Judge and Chief Judge Emeritus from the United States Court of Appeals for the Third Circuit) wrote that, “an ideal appellate judge would possess the following six qualities: Fairness, Justness, and Impartiality; Devotion and Decisiveness; Clear Thought and Expression; Professional Literacy; Institutional Fidelity; and Political Responsibility.”88 Judge Aldisert expounded on his list by saying that the ideal appellate judge is “industrious, attentive, and thorough”89 and the judge must have “the intellectual courage and confidence to meet the responsibilities of office, irrespective of age, without taking the easy way out.”90

In addition to the foregoing descriptions of appellate level judges, “the Illinois Constitution places administrative authority for the entire [judicial] system in the Supreme Court . . . [which] also submits the annual judicial budget to the General Assembly . . . appoints judges to vacancies, and creates rules to provide for the orderly flow of judicial business.”91 Illinois Supreme Court justices are also responsible for the licensure and supervision of attorneys in Illinois, including the promulgation and enforcement of ethics rules.92

To test the survey respondents’ knowledge of what appellate level judges are expected to do, the survey listed several “duties” and the respondents were asked to select all of the obligations that were legitimately the responsibility of the justices on each court. The same list of duties was provided for each court, but the order of the options was shuffled when the list was repeated.93

A few of the options listed were not responsibilities of either appellate or supreme court justices in Illinois, and a few options pertained only to one court. Several options were legitimate job functions of one or both sets of jurists. The results are noteworthy if, for no other reason, that no job duty (correct or incorrect) was selected by more than 77.48% of the respondents and several incorrect options were selected by a sizeable minority of respondents. One of the possible job duties listed was that appellate level judges could “[g]rant the discharge of debts under the Illinois Bankruptcy Code.” Surprisingly, 9.38% of the respondents said it was the responsibility of Illinois Appellate Court justices and 6.7% believed that it was the responsibility of the justices of the Illinois Supreme Court. Illinois does not have a bankruptcy code because bankruptcy is a federal law.94

Also, there were significant differences in what respondents believed to be the duties of the two groups of judges, even when the duties were the same. For example, the respondents were asked if either group of justices were expected to “[i]nterpret the Illinois Constitution,” which Judges on both courts interpret.95 In response, 77.48% of the survey respondents said that this was one of the duties of the members of the Illinois Supreme Court, yet only 48.53% of the same set of respondents believed that it was one of the duties of the members of the Illinois Appellate Court. When asked if the two groups of judges were expected to interpret the United States Constitution, just 36.46% of respondents stated that it was a duty of Illinois Supreme Court justices and only 22.25% stated that it was a duty of the Illinois Appellate Court justices.

One of the most important duties of the Illinois Supreme Court is the disciplining of attorneys. When asked if either group of judges is responsible to “[d]iscipline attorneys, including disbarring them,” only 30.83% of the respondents said that it was the duty of the justices on the Supreme Court and 14.75% believed that it was the responsibility of the justices on the Illinois Appellate Court.

The respondents were also asked if the appellate judges were expected to “[a]pply existing legal precedent as much as warranted under the circumstances,” which is central to how appellate courts make decisions.96 Only slightly more than half of the survey participants selected this responsibility as appropriate for the appellate-level justices with 52.28% of the respondents believed it was one of the duties of the appellate-court judges only 59.52% believed it was one of the duties of the supreme-court judges. Some survey respondents also believed that both appellate judges (11.80%) and supreme-court judges (7.77%) “[r]egularly conduct jury trials” and that both appellate judges (13.94%) and supreme-court judges (11.26%) “[d]etermine the guilt of a criminal defendant.” In an ideal world, all of the respondents should have known that the justices on both appellate-level courts apply existing legal precedent as a regular function of their decision-making and all of the respondents should have known that neither the Illinois Appellate Court nor the Illinois Supreme Court regularly conducts jury trials.

There is clearly a need to communicate more information about what the judges of Illinois’ reviewing courts do daily if the survey respondents are representative of the wider Illinois population.97 Moreover, campaign ads should be focused on how qualified candidates are for higher judicial office, as measured against what the judges actually do when they ascend to the bench. Unfortunately, those qualifications are not regularly the focus of campaign ads, and, as a result, the public is less-informed about what appellate-level judges do and thereby less able to assess who has the potential to do a good job on the bench.

6. Criteria for Electing Judges

The next question in the survey asked respondents to share how important several factors are when deciding whom to vote for in an appellate-court or supreme-court election. The respondents could indicate that each factor was “not important at all,” “somewhat not important,” “neutral in their decision,” “somewhat important,” or “extremely important.” No factor was ranked as “extremely important” by everyone, but ranking the responses from highest to lowest based on their rating average, it becomes apparent that factors such as writing and analytical skills, while important, are viewed as just as important as whether a candidate will “keep your family and community safe.” This is despite the fact that the direct functions of the Illinois Supreme Court and the Illinois Appellate Court are not carried out in response to the need or perceived need to “keep [one’s] family and community safe.” The survey results notwithstanding, candidates for judicial office in recent years have focused on qualifications that our survey respondents indicate means very little to them. Here are the rating averages:

Q: When voting for a candidate for Illinois Appellate Court or Illinois Supreme Court justice, how important are the following factors with “1” being not important at all and “5” being extremely important?

Factor Rating Ave.

The analytic skills of the candidate 4.41

The synthesis skills of the candidate 4.14

The likelihood that the candidate will keep your family and community safe 4.12

The written communication skills of the candidate 4.02

The likelihood that the candidate will keep convicted criminals in jail

and off the streets 3.83

The performance of the candidate in law school 3.08

The political party of the candidate 2.68

How effective the candidate’s political ads are 1.95

7. Demographic Data

Additional questions were asked to obtain demographic information about the survey participants. The respondents ranged in age from eighteen to twenty-four (8.09%) up to those “[seventy-five] and older” (7.82%), with the highest concentration of respondents falling in the fifty-five to sixty-four (23.99%) and forty-five to fifty-four (18.06%) age ranges. The survey respondents were mostly Caucasian (90.54%), but all racial and ethnic groups were represented, and the gender breakdown was 53.23% women and 46.77% men.98

V. Reform Push-Back

The survey results notwithstanding, it strikes the authors of this Article as disappointing and, perhaps, unseemly to witness people who seek positions that are supposed to be among our most learned and thoughtful legal jobs running campaign ads and verbalizing partisan talking points in election campaigns. 99 For that reason, alone, merit selection of the justices on Illinois’ appellate and supreme courts seems appropriate. There are other voices in the crowd, however.

Not everyone agrees that electing judges is a bad idea. Law professors Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner analyzed the work of 408 judges on the state supreme courts of all fifty states and concluded that elected judges may be equal to or better than appointed judges in carrying out their duties.100 Retired United States District Judge Michael McCuskey, formerly on the federal bench in Central Illinois, likewise sees little difference between popularly elected judges and those selected through a merit-selection process. He explains: “I’ve seen a lot of great judges elected and a few bad apples. The same goes for those appointed.”101 Interestingly, however, there are far fewer examples of ethics concerns and/or ethics proceedings that arise out of the merit selection of judges than one finds arising out of the election of judges.

Similarly, there are numerous articles that assert that the election of judges is “good for democracy.”102 Some have criticized the merit-selection process as a version of back-room, patronage politics from the Tammany Hall era103 of American politics.104 While others note that elections ensure that the judges are directly accountable to the people who placed them in office.105

VI. Reform Proposal

Admittedly, citizens vote for political offices all the time without a complete understanding of what the job qualifications and duties are. The authors believe, however, that most voters know what the usual constitutional state offices do. Politicians serving as Governor, Lieutenant Governor, Secretary of State, Treasurer, or Attorney General are either very public figures (governor and attorneys general), or voters interact with their office regularly (secretaries of state), or their titles give away their main responsibilities (Lieutentant Governor or Treasurer). “Justice of ‘X’ Court” is not as familiar an office, but it is just as important as any of the executive branch officers.

If the citizens of Illinois are not educated and/or aware enough to know what appellate district they live in or what the job responsibilities of Illinois justices are, perhaps it is time to adopt a merit-selection system for the Illinois Appellate Court and the Illinois Supreme Court. Merit selection, also widely known as the “Missouri Plan,” is often cited as a preferred method to choose judges because a standardized review process can be applied to all candidates and the overt politics that are often associated with judicial elections can be minimized.106

Critics of merit-selection systems often claim that they merely replace party politics with a different type of politics: backroom politics.107 To blunt this criticism, the merit-selection proposal described in this article attempts to spread out the citizen involvement in the process in order to avoid undue influence by large law firms, politicians, citizens from densely populated Cook County, or attorneys with marquee names.

The proposed merit-selection model would create three panels of citizens, selected statewide, and chaired by the deans of Illinois’ three public law schools.108 Each panel would consist of the chair and eight panel members, four attorneys or judges and four laypersons. The Governor of Illinois would appoint two of the attorneys or judges and two of the laypersons on each panel and the Illinois Senate President and the Speaker of the Illinois House of Representatives would each appoint one attorney or judge and one layperson to each panel. Panel members other than the chairs will serve staggered terms to ensure that no individual gains too much power or influence over the selection process.109 Additionally, excluding the deans, there must be at least one panel member from each of Illinois’ five appellate districts; that way, there is little chance that Chicago citizens could dominate all three panels.

Under the proposal that is the subject of this article, the three merit-selection panels would be called into service in a pre-determined rotation. Each panel would meet somewhere in the state capital, as necessary, or electronically. The Governor’s Office would coordinate all of application processes. Each time there is a vacancy, a merit-selection panel would be asked to review the applications for that vacant post, interview the top candidates, and recommend three finalists to the Governor. The Governor would be required to appoint someone who had been recommended by the merit-selection panel and could not circumvent the process by naming someone whose name is not on the final list of three. If the Governor finds that all three nominees are lacking for whatever reason, the slate is rejected and the next merit-selection panel in the rotation would be asked to screen candidates anew for the same position.

Law school deans are called upon to serve as chairs of the merit-selection panels for several reasons. First, they are usually not members of the Illinois bench or bar who aspire to become an appellate or supreme court justice themselves; often, they hold licenses in jurisdictions other than Illinois and have little or no personal connection to the Illinois bench or bar. Second, they are vetted extensively for their positions by their respective faculties and are almost always individuals with exemplary legal skills and scholarly achievement. Deans, as law professors, are also in a very good position to evaluate the analytical skills and the synthesizing abilities of those individuals who are seeking to become justices. Third, they have complex job responsibilities at their respective institutions and are very unlikely to steer a merit-selection process in favor of one candidate or another because they are largely disinterested in bench or bar politics. Most deans, upon leaving their positions, return to the full-time faculty, move on to central administration within a university, or leave their school for a position at another school. It is relatively unheard of that a law school dean would leave his or her position to remain in a state and become an appellate or supreme-court justice.110

Under the model proposed herein, once a justice has been appointed to the bench, the person would serve a ten-year term in office. At the ten-year mark, the jurist would be required to run for retention in a general election in order to serve a subsequent ten-year term.111

One must acknowledge that this article does not address whether trial-level judges should be selected by a process other than partisan election. It is the belief of the authors that the merit-selection discussion regarding trial judges would be a distraction from the points raised in this article. The public generally does know what trial judges do. Moreover, as jurors, defendants in traffic court, parties to a divorce, etc., citizens are more likely to have a relatively informed opinion about what trial judges do and what qualifications they should have.

VII. Conclusion

Illinois judicial elections are troublesome, especially in those instances when individuals are seeking to become appellate or supreme court justices. As many scholars have discussed, there is an unease that one feels when thinking about a member of the appellate court or the highest court in the State campaigning for votes or seeking donations to fund that campaign. Likewise, there is a concern that campaign funds regularly pay for advertisements that have little to do with educating voters about a candidate’s qualifications to serve on one of the highest two courts in the State. Moreover, it is antithetical to the notion that judges and lawyers should avoid the appearance of impropriety when one considers that law firms and lawyers who might contribute to a judge’s campaign war chest and then appear before that judge on a matter pending in court.

In addition to the aforementioned concerns about the election of appellate-court judges, there is also a concern that Illinois citizens are so ignorant when they go to the polls to elect someone to become a member of the Illinois Appellate Court or the Illinois Supreme Court that the selection of these jurists might not be best left to the voters.

No matter the concern, it appears to the authors of this article that merit selection of the justices on Illinois’ highest two courts would be a vast improvement over the current system. Money (in the form of direct campaign contributions) would be eliminated, solicitations for money to fund campaigns would be eliminated, and overt partisan campaigning could be significantly reduced. Additionally, a merit-selection process might move the inquiry away from advertising and qualifications that have little to do with the responsibilities that justices have and focus attention on whether a candidate for the Illinois Appellate Court or Illinois Supreme Court has the ability and capacity to meet those requirements.

Please download the article if you would like to see the survey question in Appendix A.

*  Visiting Professor, University of Arkansas-Little Rock William H. Bowen School of Law. B.A., Political Science, Southern Illinois University Carbondale; J.D., Northeastern University. I thank Professors Christopher Behan, Mark Brittingham, and the late William Schroeder and Dean Paul McGreal for their wisdom and helpful suggestions early in the research and writing stages. I also thank Professor Stephanie Farrior for her research support and I thank my research assistants Paul Alexander II, Nicholas Antonacci, Ryan Dattilo, Timothy Hudgspeth, Mykisha Jordan, Justin Macke, and Madison Pitts for their excellent researching, writing, citation, and editing support over the many years it took to complete this article.

**  George M. Vineyard, Assistant Vice President of Institutional Effectiveness, St. Louis College of Pharmacy. B.A., Psychology, M.S. Education, Ph.D. Statistics and Measurement, Southern Illinois University Carbondale.

1. State-by-State Summary of Judicial Selection, USLegal, http://courts.uslegal.com/selection-of-judges/state-by-state-summary-of-judicial-selection (last visited Oct. 1, 2017).

2. For a helpful history lesson regarding the selection/election of state-court judges, see Glenn R. Winters, Selection of Judges—An Historical Introduction, 44 Tex. L.R. 1081 (1966).

3. Robert W. Bergstrom, The Continuing Effort to Create Nonpartisan Judiciaries in the State Courts 2 (2001); see also Woodward v. Alabama, 134 S. Ct. 405, 408 (2013) (Sotomayor, J., dissenting) (“What could explain Alabama judges’ distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty? . . . The only answer that is supported by empirical evidence is [that] Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”).

4. Buck Wargo, Former U.S. Supreme Court justice says appointed judges better for business, Las Vegas Sun, (Sept. 22, 2010), http://www.lasvegassun.com/news/2010/sep/22/former-us-supreme-court-justice-says-appointed-jud; see also Judith Maute, Selecting Justice in State Courts: The Ballot Box or the Back Room?, 41 S. Tex. L. Rev. 1197 (2000).

5. See, e.g., Mike Riopell, Rauner: Illinois Supreme Court part of a “corrupt system,” Daily Herald (Apr. 8, 2015, 6:44 AM), available at http://www.dailyherald.com/article/20150407/NEWS/
150409036/.

6. Stephen J. Ware, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar, 68 Vand. L. Rev. En Banc 59, 77–78 (2015) (arguing that campaign contributions create a serious risk of elected judges “apply[ing] legal rules differently to their contributors than to otherwise similarly situated parties”); Thomas R. Phillips, The Merits of Merit Selection, 32 Harv. J.L. & Pub. Pol’y 67, 90–91 (2009).

7. Phillips, supra note 6 at 85–86; see also Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015) (holding that a Florida law that prohibits judicial candidates from directly soliciting campaign donations does not violate the First Amendment).

8. Mark S. Cady & Jess R. Phelps, Preserving the Delicate Balance Between Judicial Accountability and Independence: Merit Selection in the Post-White World, 17 Cornell J.L. & Pub. Pol’y 343, 368 (2008). But see Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (holding that Minnesota’s prohibition on judicial candidates announcing their views on disputed legal and political issues violates the First Amendment); Winter v. Wolnitzek, Nos. 16-5836/5839/5841, slip op. 16a0206p.06 (6th Cir. Aug. 24, 2016).

9. Carmen Beauchamp Ciparick, Judicial Independence: Is It Preserved or Impaired by the Election of Judges?, 77 Alb. L. Rev. 1313, 1328–29 (2013–2014); see, e.g., James D. Nowlan et al., Illinois Politics: A Citizen’s Guide 145 (2010) [hereinafter Citizen’s Guide].

10. By tradition in Illinois, even though the Illinois Constitution refers to the members of both the Illinois Appellate Court and the Illinois Supreme Court as “judge,” the members of both courts are commonly referred to as “justice.” See Ill. Const. art. VI, §§ 3, 6 (1970).

11. See, e.g., Luke S. Bierman, Preserving Power in Picking Judges: Merit Selection for the New York Court of Appeals, 60 Alb. L. Rev. 339 (1996); Lawrence H. Averill, Jr., Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas, 17 U. Ark. Little Rock L.J. 281 (1995).

12. Citizen’s Guide, supra note 9, at 145. Illinois elects its Appellate and Supreme Court judges by judicial district, so all citizens do not elect every member of the highest two courts. See Ill. Const. art. VI §§ 3, 5.

13. See, e.g., Samuel W. Witwer, Jr., The Illinois Constitution and the Courts, 15 Univ. of Chi. L.R. 53, 54–55 (1947) (describing a proposed State constitution, which was defeated in 1922, that would have made changes to the judiciary).

14. See James W. Hilliard, The Illinois Constitution: A Primer, 96 Ill. B.J. 494 (2008); see also Election Results 2008: Illinois, N.Y. Times, http://elections.nytimes.com/2008/results/states/illinois.html (last visited Oct. 1, 2017).

15. Hilliard, supra note 14, at 495.

16. Con-Con: Issues for the Illinois Constitutional Convention 185 (Victoria Ranney, ed. 1970) (hereinafter Con-Con).

17. Id.

18. Id. at 187 (citation omitted).

19. See Ill. Const. art. VI, § 12.

20. See Maurice Possley, Archives: Operation Greylord: A federal probe of court corruption sets the standard for future investigations, Chi. Tribune (Feb. 7, 2017, 2:35PM), http://www.chicagotribune.com/news/nationworld/politics/chi-chicagodays-greylord-story-story.html (describing the corruption in the Cook County court system that led to the indictment of seventeen judges).

21. Citizen’s Guide, supra note 9, at 143; see also William E. Schmidt, 5 Indicted in Latest Inquiry into Corruption in Chicago, N.Y. Times, (Feb. 7, 2017, 2:42PM), http://www.nytimes.com/1990/12/20/us/5-indicted-in-latest-inquiry-into-corruption-in-chicago.html (describing the indictment of a Cook County judge and others as a result of a federal investigation of corruption in Chicago’s First Ward).

22. Citizen’s Guide, supra note 9, at 143.

23. Id. at 145.

24. Id.

25. See Caperton v. A.T. Massey Coal Co., 679 S.E.2d 223 (W. Va. 2008).

26. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009); see also Caperton v. A. T. Massey Coal Co., Oyez, https://www.oyez.org/cases/2008/08-22 (last visited Oct. 1, 2017).

27. 558 U.S. 310 (2010).

28. What is Citizen’s United?: An Introduction, Reclaim Democracy!, http://reclaimdemocracy.org/who-are-citizens-united (last visited Oct. 1, 2017).

29. “Dark money” is a term used to describe politically-oriented nonprofit organizations, organized under Sections 501(c)(4) and (c)(6) of the Internal Revenue Code, who can receive unlimited corporate, individual, or union contributions but do not have to disclose their funding sources. See Political Nonprofits (Dark Money), Opensecrets.org: Ctr. for Responsive Politics, https://www.opensecrets.org/outsidespending/nonprof_summ.php (last visited Oct. 1, 2017).

30. Following the Citizens United decision, there is evidence that the needle is moving in favor of less disclosure about campaign and political donations and away from transparency. See, e.g., 2015 Wisconsin Act 117 (Dec. 16, 2015) (permitting “issue advocacy” groups to work directly with political campaigns without having to disclose their donors).

31. Charles N. Wheeler III, Public confidence in the judiciary goes down as campaign rhetoric gets nastier, Ill. Issues Online (Oct. 2004), http://illinoisissues-archive.uis.edu/politics/supreme.html.

32. Id.

33. Id.

34. Deborah Goldberg & Samantha Sanchez, The New Politics of Judicial Elections 2002, (Feb. 11, 2017, 5:12PM), https://www.followthemoney.org/assets/press/Reports/200405061.pdf.

35. Id.

36. Id.; see also Charles Gardner Geyh, The Endless Judicial Selection Debate and Why It Matters for Judicial Independence, 21 Geo. J.L. Ethics 1259, 1267 (2008).

37. Ann Knef, #1 News Story: Karmeier wins costliest state SC race: Maag not retained, Madison-St. Clair Record (Dec. 28, 2004, 5:28 AM), http://madisonrecord.com/stories/510559082-1-news-story-karmeier-wins-costliest-state-sc-race-maag-not-retained.

38. Illinois Judicial Elections, Brennan Ctr. For Justice, http://www.brennancenter.org/sites/default/files/legacy/d/IL_FileWeb.pdf (last visited Oct. 1, 2017).

39. Billy Corriher & Brent DeBeaumont, Dodging a Billion-Dollar Verdict, Ctr. for Am. Progress (Aug. 14, 2013, 9:15 AM), https://www.americanprogress.org/issues/courts/reports/2013/08/14/72199/dodging-a-billion-dollar-verdict (citation omitted).

40. Id.

41. Id.

42. See Editorial: Illinois Supreme Court justice survives ballot attack, but others be wary, Chi. Tribune (Nov. 7, 2014, 7:15 PM), http://www.chicagotribune.com/news/opinion/editorials/ct-karmeier-supreme-court-edit-1110-20141107-story.html.

43. Justice for the highest bidder? Take the courts out of politics, Chi. Tribune (Nov. 21, 2011), http://articles.chicagotribune.com/2011-11-21/opinion/ct-edit-judge-1121-bd-20111121_1_lloyd-karmeier-campaign-office-lawyers.

44. Id.

45. Id.

46. See Editorial, supra note 42.

47. Lawyers in Hale v. State Farm reduce status of key investigator; Sides attach each other’s experts, Madison-St. Clair Record (Jan. 13, 2016), http://madisonrecord.com/stories/510657681-lawyers-in-hale-v-state-farm-reduce-status-of-key-investigator-sides-attack-each-others-experts.

48. See Model Rules of Jud. Conduct Canon 1 (2010) (Judges are to “avoid impropriety and the appearance of impropriety); Model Code of Prof’l Responsibility Canon 9 (1980). The ABA Model Rules of Professional Conduct do not contain language specifically requiring members of the legal profession to avoid the appearance of impropriety; that language is a holdover provision from Canon 9 of the 1908 Model Code of Professional Responsibility.

49. Dave McKinney, New pension-reform law is courting controversy, Chi. Sun-Times (Jan. 3, 2014, 03:02 PM), http://chicago.suntimes.com/politics/7/71/169673/new-pension-reform-law-is-courting-controversy.

50. Id.

51. Debra Cassens Weiss, Judge allows class action claiming State Farm secretly orchestrated Illinois justices campaign, ABA Journal (Sept. 21, 2016), http://www.abajournal.com/news/article/judge_allows_class_action_claiming_state_farm_secretly_
funded_illinois_just.

52. 18 U.S.C. §§ 1961 et seq. (2016).

53. See Weiss, supra note 51.

54. Edward M. Burke, Introduction: Remarks by Alderman Edward M. Burke, Illinois Judges (Oct. 19, 2016, 9:08AM), http://illinoisjudges.law.northwestern.edu/intro.html (“Politics aside, what it boils down to is this: the successful candidate must possess the necessary drive and motivation; a high degree of professionalism; a reverence for the law and a passion and commitment to serving the best interests of the people of Illinois.”).

55. To view examples of some of the more sensational judicial campaign ads, see infra note 99.

56. The Chicago Bar Association (“CBA”) has advocated for many years for some type of merit-selection system for choosing Illinois judges, but its efforts have been met with resistance. Kerry R. Peck, President’s Page, 14-Apr CBA Rec. 12 (2000).

57. “The test for recusal is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would conclude that there is a reasonable basis for questioning the judge’s impartiality.” 46 Am. Jur. 2d Judges § 129 (2016).

58. The Brennan Center for Justice at New York University School of Law has been very active in the effort to promote fair and impartial courts. To that end, the organization issued a report entitled, “Promoting Fair and Impartial Courts through Recusal Reform.” See Adam Skaggs & Andrew Silver, Promoting Fair and Impartial Courts through Recusal Reform, Brennan Ctr. for Justice (Aug. 2011), http://www.brennancenter.org/sites/default/files/legacy/Democracy/Promoting_Fair_Courts_8.7.
2011.pdf.

59. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009).

60. Id.

61. Id. at 872–73.

62. Id. at 884.

63. Id.

64. See, e.g., Bob Ruble, Letters to the Editor, Restore the Balance of Power, IllinoisTimes.com, (Feb. 20, 2008), http://illinoistimes.com/article-4840-letters-to-the-editor.html (“We made two amendments to the Constitution that altered the balance of power between the three branches of government and effectively paralyzed them. The first is the income tax . . . The second is limiting the terms of the executive branch.”).

65. See, e.g., Phil Henning, Letter to the Editor, Vote Duebbert, Cason in as Judges, Belleville News-Democrat, (Oct. 19, 2016), http://www.bnd.com/opinion/letters-to-the-editor/article109275842.html.

66. See, e.g., Elizabeth Monkus, Letter to the Editor, Campaign Contributions and Recusal, Chi. Daily Law Bulletin, (Feb. 12, 2013), http://www.chicagoappleseed.org/letter-to-the-editor-campaign-contributions-and-recusal/.

67. A lack of understanding about the appellate court is not the only concern. In the 2016 elections, citizens of Cook County elected to the bench a law clerk/staff attorney who was accused of donning a judge’s robes and deciding cases, despite a state supreme court order temporarily barring her from the bench. See Debra Cassens Weiss, Law clerk accused of ruling on cases wins judicial election, though she is barred from the bench, ABA Journal.com (Nov. 10, 2016, 11:19 AM), http://www.abajournal.com/news/article/law_clerk_accused_of_ruling_on_cases_wins_judicial
_election_though_she_is_b.

68. The complete survey instrument is reprinted in Appendix A.

69. The number of respondents was selected to yield a five percent survey error rate on the instrument.

70. Ill. Const. art. VI, § 2.

71. 2013 Ann. Rep. of the Ill. Sup. Ct. Admin. Summary 25, http://www.illinoiscourts.gov/SupremeCourt/AnnualReport/2013/AdminSumm/2013_Admin_
Summary.pdf.

72. Id. at 26.

73. Id. at 27.

74. Id. at 28.

75. Id. at 29.

76. Ill. Const. art. VI, § 3.

77. Keeping in mind the 5% survey error rate, this means that the resulting 60.61% could be as high as 65% or as low as 55% with a 95 percent confidence interval. This indicated to the authors that even if the lower bound estimate was used we are 95 percent certain that a majority of the voters simply do not know the district within which they reside.

78. See generally Sam Hudzik, Illinois Supreme Court Election: Does anybody even know its on the ballot?, WBEZ91.5 (Feb. 13, 2012), http://www.wbez.org/story/illinois-supreme-court-election-does-anybody-even-know-its-ballot-96299 (last visited Oct. 1, 2017).

79. See Illinois Judiciary Map, http://www.illinoiscourts.gov/CircuitCourt/CircuitMap/

Map1.asp (Feb. 13, 2017, 5:30PM); Polidata Region Maps, Polidata Demographic & Political Guides (2002), http://www.polidata.us/pub/maps/rg2000/il_reg.pdf.

80. See Illinois Judiciary Map, http://www.illinoiscourts.gov/CircuitCourt/CircuitMap/

Map1.asp (Feb. 13, 2017, 5:30PM).

81. Since all the respondents were able to identify this question, it indicated to the authors that it was not the respondents’ locations within the state that played the major role in the voters knowledge of the appellate districts but rather it was a more wide spread phenomenon.

82. Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 Wis. L. Rev. 39 (1995).

83. Bernard Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 31 Tulsa L.J. 93 (1995).

84. Id. at 94.

85. Id. at 157 (citing William D. Pederson & Norman W. Provizer, Great Justices of the U.S. Supreme Court 22 (1993)).

86. Joiner’s career included exemplary service as a distinguished attorney, law professor, law school dean, Michigan Bar Association president, and United States District Judge. See Happy Birthday to Hon. Charles W. Joiner, SBM Past President, State Bar of Mich. (Sept. 6, 2016, 5:27 PM), https://www.michbar.org/news/newsdetail/nid/5281.

87. Con-Con, supra note 16, at 185.

88. Ruggero J. Aldisert, Max Rosenn: An Ideal Appellate Judge, 154 Pa. L. Rev. 1025, 1027–28 (2006).

89. Id. at 1030.

90. Id.

91. Citizen’s Guide, supra note 9, at 141.

92. See Ill. S. Ct. R. art. VII–VIII.

93. The authors felt it wise to randomize the order of the options, in an effort to force the respondents to read each of the lists separately. Without randomization, high-percentage responses about certain duties would be difficult to assess because one would not know if this was an actual respondent preference or a choice made simply because of the answers’ locations within the various lists, possibly chosen at random.

94. See U.S. Bankruptcy Code, 11 U.S.C. § 101 (2016).

95. See, e.g., Fergus v. Marks, 152 N.E. 557, 559 (Ill. 1926).

96. Courts are generally bound by prior decisions unless there is “a legislative change, a change in applicable regulations, a judicial decision dealing with a related or analogous issue, a change in the social or economic context of the issue, or some other important new information.” Bethesda Lutheran Homes and Services, Inc. v. Born, 238 F.3d 853, 858 (7th Cir. 2001).

97. The resulting sampling size provides the authors a five percent error rate on the responses. See supra note 77.

98. One matter that concerned the authors was that “Caucasian” was the largest racial demographic in the survey, with 90.54% responding. This figure is a higher than the statewide percentage reported by the U.S. Census Bureau of 77.1%. United States Census Bureau, Quick Facts (June 30, 2017, 10:11 AM), www.census.gov/quickfacts/fact/table/IL,US/RHI125215. The 13% difference could affect the survey results and as such further investigation may be warranted to attract a more diverse pool of respondents.

99. For powerful examples of unseemly political ads for judges, see, e.g., https://www.youtube.com/watch?v=4Du_WEHjMMw (July 16, 2009).

100. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary, 26 J.L. Econ. & Org. 290, 292–99 (2010).

101. Helen Gunnarsson, So You Want to be a Judge, Ill. Bar Journal, available at http://www.isba.org/ibj/2010/09/soyouwanttobeajudge (last visited Oct. 1, 2017). Judge McCuskey is currently a Circuit Court Judge in Marshall County, Illinois.

102. See, e.g., Alex Floyd & Pieter Brower, Are Judicial Elections Good Policy?, Brown Political Review (May 2, 2015), http://www.brownpoliticalreview.org/2015/05/are-judicial-elections-good-policy; Michael DeBow et al., The Case for Partisan Judicial Elections, The Federalist Soc’y (Jan. 1, 2003), http://www.fed-soc.org/publications/detail/the-case-for-partisan-judicial-elections.

103. Led by William Magear “Boss” Tweed, New York City’s corrupt Democratic political machine in the 1860s and ‘70s was known as “Tammany Hall.” History Channel, http://www.history.com/this-day-in-history/boss-tweed-delivered-to-authorities (last visited Oct. 1, 2017).

104. See, e.g., Mary Connelly, Pro & Con: Selection vs. Election; Should New York Take Judges Off the Ballot?, N.Y. Times (May 22, 1988), http://www.nytimes.com/1988/05/22/weekinreview/pro-con-selection-vs-election-should-new-york-take-judges-off-the-ballot.html.

105. See, e.g., Geoff Pender, Why do we elect judges?, The Clarion-Ledger (Nov. 5, 2016), http://www.clarionledger.com/story/news/politics/2016/11/05/election-appointed-judges/93135846.

106. See, e.g., Bridget E. Montgomery & Christopher C. Connor, Partisan Elections: The Albatross of Pennsylvania’s Appellate Judiciary, 98 Dick. L. Rev. 1 (1993) (arguing that Pennsylvanians should adopt a merit-selection system); Christine E. Branstad, David L. Phillips & Nathan A. Olson, A Coin on the Tracks: Can Big Money and Politics Derail Judicial Impartiality Through Election Spending?, 60 Drake L. Rev. 715, 733 (2012) (“Merit selection and retention elections continue to offer public participation without the tarnish of politics and money that comes with popular election.”).

107. John M. Roll, Merit Selection: The Arizona Experience, 22 Ariz. St. L.J. 837, 872 (1990) (citation omitted) (quoting Pima County Supervisor Conrad Joyner, who asserted, “I knew this was going to happen and it only bears out what I predicted during the campaign: what we’ve done is moved the politics from the open process by the governor and the people and put it into the back rooms.”).

108. Currently, the three public law schools are Northern Illinois University College of Law, Southern Illinois University School of Law, and the University of Illinois College of Law.

109. It is the authors’ collective belief that law school deans do not need to be subject to term limits because they generally do not serve for long periods of time in those positions. Currently, the average tenure of a law school dean is 3.67 years. See James Rosenblatt, Rosenblatt’s Deans Database, available at http://www.law.mc.edu/deans/stats.php (last visited Oct. 1, 2017).

110. The notion of asking the law school deans to serve as chairs of the merit-selection panels is not novel. The New Mexico constitution mandates that judicial vacancies in several courts shall be filled by the State’s Judicial Nominating Commission, which is chaired by the dean of the University of New Mexico School of Law. See N.M. Const. art. VI §§ 35–37.

111. Retention elections carry their own campaign finance concerns and one could certainly argue that they may be just as partisan and just as expensive as contested candidate elections. See Kurt Erickson, Kilbride raises $2.5 million in race to keep justice seat, The Pantagraph (Oct. 29, 2010, 7:43 PM), http://www.pantagraph.com/news/state-and-regional/illinois/article_dc457c10-e3be-11df-ae38-001cc4c002e0.html; see also Andrew Maloney, Report: Karmeier election tops for outside donations, Chi. Daily Law Bulletin (Oct. 29, 2015, 1:04 PM), http://www.chicagolawbulletin.com/New Group Seeks to have Justices Voted Off Court, Sun-Sentinel.com (Dec. 20, 2000), http://articles.sun-sentinel.com/2000-12-20/news/0012190904_1_supreme-court-justices-merit-retention-court-opinions (reporting on an effort by a group called “Take Back Our Judiciary” that sought to persuade voters to oust the members of Florida’s Supreme Court who had supported a vote recount in the Al Gore-George Bush presidential election).

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