Are Illinois Appointed Judges Better Jurists than Elected Jurists?

It is perhaps a custom that grew out of an era nearly 200 years ago that elected judges would be better suited to carry out the law and protect the integrity of the United States court systems. The reason many states adopted the laws that would allow the election of judges was because so long ago, perhaps in the 1820s, judges were appointed by those in power and influence and thus judges were likewise influenced by those who appointed them. It was thought that the election of judges by the area’s residents would place the best qualified judges on the bench and thus render fair and reasoned opinions absent the influence of the powerful.

A 2007 University of Chicago Law School study found that appointed judges write fewer opinions than elected judges. However, the written opinions by appointed judges tend to be of a higher quality. “A simple explanation for our results,” wrote Stephen Choi, J. Mitu Gulati and Eric Posner, “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people.”

The election of judges occurs in 39 U.S. states, including Illinois. Simply put, judges can earn a spot on the bench by winning an election — often, one that is partisan. In fact in some states, the elected judges do not need to be lawyers. This is unheard of throughout most of the civilized world.

A judicial watchdog, the American Constitution Society, released a landmark study, “Justice at Risk,” which linked campaign contributions to judicial rulings. The team from this group of researchers “collected and coded data on more than 2,345 business-related state supreme court published opinions” from all 50 states. The period covered 2010 through 2012. The study found that “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.”

It is sad to say that what the American Constitution Society study found was that the more money given in campaign contributions from business interests, no surprise, led to more likely a vote for the business litigant. It was found that when half or more of the contributions from business groups for an elected judge, decisions for that business group by the judge would be in its favor two-thirds of the time.

The study showed that the more money given to a Democratic judge, the greater the weight the contribution would have. The authors of a study theorized that perhaps the Republican judges were more likely to side with corporate interests even without the campaign contribution from businesses.

It can be argued that the election of judges in a partisan process undermines the separation of powers that the Constitution demands. In other words, the election of judges politicizes government.

It is no secret that Illinois and the election of its judges is one of the biggest offenders of judicial elections. Consider that the John Oliver show, Sunday with John Oliver, highlighted a segment on judicial elections and made a point of the Illinois Supreme Court election between justices Kilbride and Karmeir.

In the Nov. 6, 2014 election in Cook County, there were more than 70 judges on the ballet up for election or retention. Some of them were unopposed. Earlier in the year there was first the judicial primary, where there were many more judges on the ballot and then came the general election. All and all, the election of judges is a travesty in that it lowers the prestige of the judiciary and makes judges subservient to campaign contributions or donations that the American Constitution Society and University of Chicago confirms influenced decisions.

Compare the way Illinois elects judges to the way a judge in France is elevated to a judgeship. There, about two-thirds of French students who apply for a law degree fail during their first two years of their 3-year program. If a person is fortunate enough or smart enough to succeed, then a master of law degree is required. If the person passes an additional oral exam, he or she then becomes eligible to take a 4-day written examination that one French judge described to the New York Time’s Adam Liptak as so grueling that it “gives you nightmares for years afterwards.” It was reported that as many as 95% of French candidates failed that 4-day exam and the few who survived are then admitted into a 27-month training program at the School of the National Magistrate, which is an elite institution that trains judges in the finer points of French law. Those who make it through that program can be recommended for an appointment to the bench by an independent body of current and former judges.

Compared to the French process of reaching the bench, Illinois’ practice of electing judges is simply deficient. The “Missouri Court Plan” is a compromise that allows for a mix of citizens, government and lawyers to appoint qualified individuals to Missouri’s courts. There are many in Illinois who support radical change to the way judges are elevated to the bench, but an Illinois constitutional amendment will no doubt be required.

Robert Kreisman of Kreisman Law Offices has been handling trials in Illinois, both at the bench and jury trials for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Naperville, New Lenox, Bridgeview, Markham, Maywood, Alsip, Worth, Blue Island, South Holland, Park Forest, Park Ridge and Antioch, Ill.

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