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Courting Support, Illinois Style: Would an appointive system be better?

In the 36th Ward’s storefront office, just down the street from the Turner Bowl on Chicago’s Northwest Side, prosecutor Dennis Michael McGuire waited patiently on a Friday afternoon in November as candidates for the 5th Congressional District and other elected posts paraded before seven Democratic committeemen. McGuire wants to be a judge, and judicial candidates are last to be considered by the committeemen, last on the ballot and last to capture the attention of the media.

There’s some irony in that. Rahm Emanuel or Nancy Kaszak — you’ll recognize those names because they’ve been written about — will have just one voice out of 435 if elected to the U.S. Congress. But McGuire and other lawyers Illinoisans have never heard of could become judges with the single-handed power to separate citizens from their homes, their cars, their children, even their lives. All the same, judicial elections bore pundits, newspaper reporters and TV anchors, so it falls largely to the ward committeemen to fill out Cook County’s bench.

McGuire watched as an elderly man with uncombed white hair trudged to the podium with a plastic bag full of papers. Government agents had stalked him at the Olympics in Atlanta, the man told the committeemen before asking them to collect the signatures he would need to run for Congress. The ward bosses glanced wide-eyed at each other, then managed polite applause.

Finally, 36th Ward Alderman William Banks invited McGuire, the only judicial candidate to seek this panel’s blessing, to come up and say a few words. Tall and chiseled with a pleasant judicial demeanor, McGuire, a former forward on DePaul University’s basketball team, told the committeemen he has been a Northwest Side resident for 40 years, and that he has been found qualified by about half the bar groups. The other bar groups, it should be noted, disagreed.

“He has worked long and hard for the Democratic Organization,” Committeewoman Patricia Cullerton of the 38th Ward told the group.

With that, the committeemen unanimously endorsed McGuire for the open seat in the Northwest Side’s 11th Subcircuit. “If there’s anything I can do for you, let me know,” McGuire told them. There is something he can do all right, Banks responded. “You can remember your friends at slating and don’t forget about us like a lot of guys do when they put on the robe.”

Chicago Council of Lawyers President David Melton burst into laughter when told of the exchange. “I think that illustrates one of the reasons why we should try to find some better system for picking our judges because I don’t think it’s appropriate for people to let memories about who their friends are influence their decision once they are on the bench.”

But to Banks, why would the comment seem inappropriate? Party committeemen are in the business of winning elections. And they believe the skills that make a good congressman and state legislator — party loyalty, years of ringing doorbells and talking to voters, constituent service — also make a good judge.

Of course, there’s potential for a political downside in this process, too. 

Two elections ago, Banks and this same crowd of committeemen endorsed another former prosecutor, George J.W. Smith, for a judgeship in the 11th Subcircuit. Smith is now under federal indictment for withdrawing $20,000 in increments small enough to evade federal bank disclosure rules. Federal investigators reportedly believe the $20,000 was a bribe to secure an earlier appointment to the bench. In fact, 19 Cook County judges have gone to prison in as many years for taking bribes and other offenses.

More amazing, perhaps, is the number of highly rated, competent judges who have come through this political process. Cook County’s best and brightest attorneys who want to be judges have learned that the price is playing this political game.

To Banks’ credit, he holds his slating in public. The Southwest Side ward bosses just tell each other over the phone who will get their subcircuit judgeships.

The Monday after McGuire’s endorsement in the 36th, all 50 of Chicago’s ward committeemen and all 30 suburban Cook County Democratic township committeemen gathered across the street from City Hall at the Hotel Allegro — committeemen still call it the Bismarck — to ratify their picks for the eight countywide judgeships and three appellate slots.

The candidates know what the committeemen, seated in rose-colored chairs or standing at the back of the room by the coffee and sweet rolls, want to hear. It’s not the candidate’s position on continuing legal education for judges. “He’s the only individual that talked about 85 percent turnout and the 3 o’clock call [to get voters to the polls], which is very important in the election,” said 11th Ward Committeeman John Daley, the mayor’s brother, referring to one politically active lawyer who, it turns out, has a good resume, having worked for the city of Chicago, the state of Illinois and the Chicago Transit Authority. “Most importantly,” that candidate, Kenneth Cortesi, tells the nodding politicians, “I’ve been a member of the 31st Ward organization since 1971. Like you, I’ve been a precinct worker. I delivered for candidates every time we had an election. I never failed to carry a precinct. I know what it is to work a precinct.”

The committeemen ate it up.

Alderman Edward Burke of the 14th Ward, chairman of the party subcommittee that drafts the judicial slate every two years, applauded the committeemen for cheering Cortesi’s political credentials more loudly than they cheered his legal ones. “I frankly think that coming to the bench with legal skills is wonderful,” Burke told his colleagues. “Knowing what people out there in the neighborhoods have to go through is something that is equally important. You’ve heard a lot of people come up here and tell about what they did in the precincts and, nine times out of 10, it’s a figment of someone’s imagination. In this case, he was one of us.”

They all are. Burke and the other committeemen note their slating is open to the public, and that they only consider candidates found qualified by the Chicago Bar Association or other bar groups. Every one of the eight candidates they slate is rated qualified. And every one of the eight also is politically connected.

And what’s wrong with that, they want to know, making no apologies for being loyal Democrats.

They love it when Burke brags about feats his father used to perform when he was still alderman at the old office on South Halsted. “If the building were still up, I would petition the Vatican for designation as a shrine — my father used to work miracles there,” Burke told the committeemen. “A guy would go down to 54 W. 

Hubbard and take the test for the Police Department and he’d be too short. And he’d come to see my father at 4713 S. Halsted. My father would write out a little card and he’d send him back there and — believe it or not — he’d grow an inch.”

The committeemen roared.

“Someone would have a heart murmur. He’d write out a card and send ’em back to 54 W. Hubbard, and suddenly they were cured,” Burke continued. “He made fat people thin. He made short people tall. It was marvelous.”

Among the lawyers this group has determined in past years to be the worthiest in town for judgeships are Burke’s wife, Anne, who appears to be doing a fine job on the Appellate Court, and Vice Chairman Cal Sutker’s daughter Shelley Lynn Sutker-Dermer, who gets good reviews on the Circuit Court.

The names of this year’s judicial candidates, as were those in the past, will be unfamiliar to most Cook County voters. About 40 percent won’t even bother to make a choice in these races. Many of those who do will go by ethnicity, gender, even ballot position. But the still-loyal troops of what’s left of Chicago’s political machine will cast votes in every race. Eighty percent of the time, the party-slated candidate wins in countywide judicial elections.

Reformers, led by former state senator and comptroller Dawn Clark Netsch, have launched numerous failed crusades over the years to change the judicial selection system. The last time Cook County voters had a choice to approve an appointive “merit selection” system, in 1970, they did so. But downstaters defeated it. Judicial elections just aren’t as cumbersome outside the Chicago metropolitan region. There are fewer offices to fill with fewer candidates, giving voters a better shot at making informed choices.

Five years ago, reformers made a modest proposal in Springfield that would have required candidates to have 10 years’ experience to run for judge. All the bar groups require that for an endorsement. It would save voters the spectacle of having judges, who make $127,000 a year, elected just two years out of law school, as happened in one case in 1996. But legislators voted it down. (House Democratic Leader Michael Madigan, now the state party leader, then handed a judgeship to a former staffer who was less than nine years out of law school.)

Moreover, judicial selection “reform” efforts appear to be moving in reverse in the legislature. Lawmakers approved a measure that spiked the number of signatures required to run countywide for judge in Cook County from 500 to about 3,000 — making it all-but-impossible for independents without an army of patronage workers to challenge party-slated candidates. Democratic members of the Black Legislative Caucus teamed up with Republicans to create 15 subcircuits in Cook County, four of which consistently elect African Americans, two or three of which elect Republicans, and two of which are supposed to elect Hispanics, but more often elect white ethnics.

Still, whatever the selection system, qualified judicial aspirants do find their way onto the bench. 

Sebastian Patti, an attorney for the federal Environmental Protection Agency who lived on the lakefront, managed a few elections ago to run his countywide campaign for Cook County judge on two levels. He got high ratings from all the bar groups, won the endorsement of the progressive Independent Voters of Illinois-Independent Precinct Organization and ran an amusing ad in the Chicago Reader. It portrayed him in a black robe sitting on the bench with basketball players and promoted the slogan, “Not just another bench warmer.” 

He also made generous donations to Madigan, Burke and the other key committeemen and courted their support early and often. Madigan turned out more votes for him than just about all of his home-base lakefront wards combined.

At a seminar for judicial candidates after the election, Patti offered his best advice for getting to the Cook County bench. “Make a direct and personal connection with your ward committee person,” he said. “If you don’t have that all-important connection, call this week. Go in on a Saturday morning. Ask for their help and support. Include them in your campaign. In a countywide race, slating is very important. The party will advance your candidacy, all the precinct captains. I would encourage those of you with a love of the law and a commitment to the administration of justice: Do what you have to do, because that’s the name of the game in Illinois, to get yourself elected.”

This year’s crop of 18 lawyers seeking election to the Cook County bench through the eight countywide openings and the 86 who are trying to get in through the 16 slots open in the subcircuits got started early. The most industrious circulated petitions for multiple vacant seats and filed in several. Then they waited to see who their competition would be. Candidates look for the race in which they’ll be the only woman running against several men, or the only candidate with an Irish name. Beyond getting slated, the factors proven over the years to help in judicial races are securing a top ballot spot, having a female name and/or an Irish name.

That’s why, when prosecutor Sheila McGinnis, with her super-Irish name and her clout-heavy family connections, was slated by the party bosses for one vacancy, every other candidate opted out of that race, leaving her the winner by default in this month’s primary. (Yes, this month. The November general election is irrelevant in these races. No Republican has beaten a Democrat for a countywide judgeship in Cook County in more than a decade. And only two of the 15 subcircuits are competitive in November.)

The Irish name carries such strong pull on the judicial ballot because voters know nothing about the candidates but their ethnicity. That’s why James G. Smith, who lost a subcircuit race in 1992, changed his name to James Fitzgerald Smith and won in 1994 and is now running for the Appellate Court with his new name. Plenty of candidates over the years — some with no Irish blood at all — have adopted Irish names to run for judge.

Candidates and the Democratic Party use gentle and not-so-gentle nudges to get hopefuls into and out of races. In the two weeks after filing, candidates comb through each other’s petitions and file objections to the nominating papers of those they want out of a race. Even if candidates know their petitions are fine, they know they will have to spend time and money defending themselves against the challenge and often will allow themselves to be pushed into a race in which no one has filed challenges against them.

This election season’s game of musical chairs lasted right up until 5 p.m. on Christmas Eve, the deadline for candidates to pull out of all but one race.

In years past, “musical chairs night” was fun to watch as candidates crowded onto the 14th floor of the James R. Thompson Center, where they got into heated arguments, engaged in shoving matches and resorted to tearful pleas as the witching hour approached. 

“I’ll pull out of this race if you’ll pull out of that one.”

“No, you pull out of that one.”

Inevitably, some poor souls, thinking they had cut all of the deals to get their main rivals out of the races they want, fail to file all of the withdrawals needed and find themselves still in two races at 5:01 p.m., meaning they are automatically disqualified from both. Joan Smuda and Michael Thomas O’Malley saw that happen to them in 1998.

But this election — perhaps because it was Christmas Eve, perhaps because the higher signature requirement has thinned the ranks of candidates — the 14th floor was a ghost town. The only two candidates still horse-trading at 4:55 p.m. were Colleen Glass and Jennifer Doughty Davenport. Both had filed to run in both openings in the 8th Subcircuit on the city’s lakefront. They finally came to an agreement. Meanwhile, one other candidate sat nearby reading a book and assuring herself that no one would file objections to her in the race she had settled on.

That’s the easy part of the judicial election. The tough part is raising the campaign cash. Candidates for state Supreme Court spent up to $1 million last time around and the Circuit Court races are catching up. The vast majority of campaign contributions to judges come from attorneys who will practice before those judges. The candidates are supposed to ignore which lawyers give them money so as not to appear to be favoring one lawyer or another.

Candidates running countywide with the party’s blessing are expected to come up with $10,000 to help with the party’s advertising budget.

Would an appointive system be better?

The Chicago-based American Judicature Society has preached for years that appointive “merit selection” systems produce higher-caliber judges and put even more women and minorities on the bench than elective systems.

At least 34 states use merit selection for some judicial offices. Typically, a blue-ribbon panel screens candidates and forwards three names to the governor to choose one for vacancies on the bench. In some states, the state Supreme Court makes the appointment.

But Illinois already has an ad hoc version of that system. The state Supreme Court appoints lawyers to “temporary” vacancies on the bench. The three Supreme Court judgesfrom Cook County control all appointments to the Cook County bench. Those justices often make the appointments in consultation with the same ward bosses who helped the justices get elected.

Of the eight connected lawyers slated to run countywide this year, six were appointed temporary judges by the Supreme Court. A majority of Cook County’s 400 judges got their starts with appointments. 

Is there a merit selection system that could not be corrupted by Cook County and Illinois politics? That question appears to be moot, as legislative leaders have no intention of changing the current system.

But in every election, the voters have the chance to take matters into their own hands. In the 36th Ward six years ago, the first time Banks ran Judge Smith, voters opted instead for the unslated Barbara Riley, a woman with an Irish name who has been doing just fine — and is indictment-free — on the bench. 

Abdon M. Pallasch covers legal affairs for the Chicago Sun-Times.

Illinois Issues, March 2002

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