The Role of the Bar in Ensuring the Election of a Qualified and Independent Judiciary
By Ted A. Donner
Candidates for judge are subject to electoral whim far more often than they should be.1 In an election year marked by as much voter apathy as this one appears to promise, however, things could get even worse.2 What should be a carefully reasoned decision by the electorate could prove something of a crap shoot, which makes it particularly important that those who do vote have at least some understanding about who they are voting for.
More informed voters are more likely to actually vote, after all. As the Pew Research Center concluded in 2006, “[p]olitical knowledge is key. Six-in-ten ‘intermittent’ voters say they sometimes don’t know enough about candidates to vote compared with 44% of ‘regular’ voters, the single most important attitudinal difference between ‘intermittent’ and ‘regular’ voters identified in the survey.”3 People are simply more likely to vote if they have at least some working knowledge of what they’re doing. That makes those who can help them gain such an understanding, like lawyers in judicial elections, particularly important in elections like this one.
Lawyers don’t just compare notes with each other, after all. We are asked by our families, our friends, our neighbors and our clients, who to vote for. We are asked because of an obvious and pervasive expectation that, because we work alongside those running for judge, we must have at least some insight into who among them would be best suited for the job.4
Not to cue “Old Glory” too early in this column, but that is an expectation we should try to live up to. It’s been said, repeatedly, after all that, “[a]s members of the legal profession, we serve as the guardians and caretakers of the American justice system. Our responsibilities include improving public understanding of the justice system and sustaining public confidence in it.”5
As a profession, we have sought to satisfy that responsibility through the creation of such groups as the American Judicature Society (which studied the ways in which judges were elected or selected for over 100 years)6 and the Informed Voters Project (which encourages members of “voluntary bar organizations to become involved as... educators regarding our courts).”7 Here in DuPage County, our bar has sought to improve public understanding through the work of our Public Interest and Education Commission (a topic for another day) and the work of our Judiciary Committee. Our Judiciary Committee is composed of lawyers dedicated to providing appropriate and informative rankings for judicial candidates to the court and to the public, after exhaustively interviewing references, reviewing credentials, and studying the biographies of those candidates. It is chaired this year by James Laraia and its membership also includes Susan Alvarado, Joshua Bedwell, Robert Berlin, Lynn Cavallo, Michael Cetina, Dion Davi, Kimberly Davis, Hon. Ted Duncan (ret.), Mark Farrow, Dennis Harrison, Patrick Hurley, Angela Iaria, Jonathan Linnemeyer, Jeffrey Muntz, Kristen Nevdal, Donald Ramsell, Chuck Roberts, and Steven Ruffalo. What this committee does, like others studying judicial performance and potential, is both remarkable and important. It helps the court, it helps the electorate in DuPage County, and it helps our members get a better understanding of how to answer the questions they’re constantly getting from their neighbors down the street.
It is fairly well established that “the opinions of attorneys are the backbone of all [Judicial Performance Evaluation] programs.”8 It is likewise true that judicial evaluation programs are important to the electorate. Indeed, one study found that as many as 82% of voters who were provided with judicial evaluations found that information helpful in deciding how to vote.9 So, as lawyers, we owe it to ourselves and to our community to ensure we know who the candidates are, what their experiences have been, and what they stand for. We need to familiarize ourselves with the work of the DCBA Judiciary Committee and the ISBA/DCBA Judicial Candidate Survey and we need to be sure we’ve done enough independent research so that we can confidently speak to the issues. We’re going to be asked, we need to have answers.
1. See, e.g. Stewart, O’Reilly? Irish Name Continues in Cook County Judicial Elections, Chicago Daily Observer (December 17, 2015) (“It is correct, quite literally, that many Cook County judges are conceived, not made or elected. The path to the bench begins in the womb, when the XX chromosomes prevail over the XY chromosomes, and a female baby is born. The journey continues, provided the mother (or the parental unit) has an Irish-surname...”).
2. Timm, Donald Trump Is Down-Ballot Republicans’ Biggest Risk, NBC News (June 17, 2016) (“Trump, 2016’s polarizing presumptive Republican nominee, could have an unusually large role in affecting down-ballot races”). See also Dizekes, Record Low Voter Turnout in Cook, DuPage Counties, Chicago Tribune (March 19, 2014) (“DuPage County... posted an 18.9 percent voter turnout, or about 109,000 people”).
3. Who Votes, Who Doesn’t and Why, Pew Research Center (October 18, 2006).
4. See, e.g. Illinois State Bar Association, Judicial Evaluations: How It Works, www.isba.org/judicialevaluations (last reviewed August 9, 2016) (“The lawyers who practice alongside candidates and judges are in a unique position to assess the professional qualities that are necessary for good judges”).
5. Tanenbaum, Educating the Public About the Law, ABA Division for Public Education (2001).
6. But see Weiss, American Judicature Society is Dissolving, Problems With ‘Membership Model Cited, ABA Journal (October 1, 2014).
7. Leali, The Informed Voters Project, 50 Florida Bar Journal 1, 22 (May 2016).
8. Brody, Judicial Performance Evaluations by State Governments: Informing the Public While Avoiding the Pitfalls, 21 The Justice System Journal 333, 338 (2000).
9. See, e.g. Esterling, Judicial Accountability the Right Way, 82 Judicature 206, 209-10 (March-April 1999).