The lingering debate
on merit selection

Should judges be elected or appointed?

THE QUESTION of whether to elect or appoint judges has had a long and turbulent history in Illinois. Three times in the last 20 years the voters of the state have been asked to vote on constitutional proposals altering the judicial selection process. And the debate isn't over. There are several proposals currently before the Illinois General Assembly which, if enacted, would change the selection method. Proponents of the present elective system are fighting to keep the public directly involved in choosing their judges. Opponents of this method have proposed that judges be selected by a merit plan in which a commission nominates candidates and presents a list for executive appointment.

The issue of judicial selection cuts to the very heart of our national democratic tradition. On one hand, there is a recognition that justice must be administered impartially. Judges must be selected because of their ability as jurists, not simply because of their political affiliations. A judge in deciding a case must be governed by principles of law and the merits of the litigant's case, not the litigant's political position. On the other hand, under our common law tradition, judges, particularly appellate judges, decide cases which become law. Judges are given immense power in this country power to interpret statutes, review administrative decisions and declare legislative and executive actions unconstitutional. The fact that judges often decide issues of tremendous significance to the general public means that the public must retain some control over the judiciary. Actually voting for judges is one means by which the public can exercise this control.

The root of the selection problem stems from the belief that it is possible to separate law from politics. Law is related to politics as trees are to a forest. It is possible to separate the two, but the result is a pile of dead wood and a barren field. Law grows out of politics; it is the end product of the political system, and the two cannot be separated. Nevertheless, even the most ardent advocate for democratic institutions recognizes that a court of law must be governed by a different set of rules than those which govern the legislative or the executive branches of government. A judge must transcend partisan politics and must definitely strive for justice in reaching a decision. A judge must not be governed by what may be the passing whim of the body politic. Judges have traditionally served as a check on the transient impulses of the legislature or the executive. The crucial factor in choosing a judicial selection process is not to eliminate politics, but to control politics. The issue is simply this: What is the proper blend of political influences and who or what group should exercise the political power to select judges?

Methods of selection

The two basic methods used in the selection of judges in the United States are election and appointment. Elective methods may be either partisan or nonpartisan. In partisan elections the judicial candidate is nominated by a party and runs with a party identification. In nonpartisan elections the judicial candidate is generally nominated in a nonpartisan primary and runs in the general election without a party label. Appointment methods used in other states differ on where the responsibility rests for the important decisions; they are made either by the governor, the legislature or a judicial nominating comission. The method which uses the judicial nominating commission is generally referred to as merit selection or the Missouri plan. (Missouri in 1940 became the first state to adopt the judicial nominating commission system.) Most states use a combination of elected and appointed systems. For example, Missouri uses merit selection for its state appellate and supreme court judges and its trial judges in the counties of St. Louis, Jackson (Kansas City), Clay and Platte, but election is used to select trial judges in the rest of the state. Executive and legislative appointment plans are popular principally among the original 13 states. In many of these states appointments by the governor must have the advice and consent of at least one of the houses of the state legislature.

The federal judiciary is selected by executive appointment. The president makes all judicial appointments with the advice and consent of the Senate, but significant roles are played in the selection process by the senator of the president's party from the state in which the vacancy exists, the Justice Department and the American Bar Association. President Jimmy Carter has taken the first step in selecting U.S. judges on merit by establishing the U.S. Circuit Court Judge Nominating Commission to propose candidates for the U.S. Court of Appeals.

New states admitted to the Union in the early 1800's generally adopted a system of electing judges. The election of judges was consistent with the theories of Jeffersonian Republicanism and Jacksonian Democracy which prevailed during the period. Judges ran for election and retention in partisan elections. Following the Civil War and

FRANK J. KOPECKY Director of the Center for Legal Studies at Sangamon State University, he is an attorney. The author acknowledges Mariann Pogge, graduate assistant for the center, for her research assistance.

14/ December 1977/ Illinois Issues

the rise of urban political organizations, the popularity of choosing judges by partisan election began to wane. Reformers began advocating the selection of judges through nonpartisan elections. Judges would run in primaries without party labels, and the two with the highest vote in the primary would stand for election in the general election. This movement gained some degree of popularity, and the nonpartisan election is now used in 17 states including Michigan, Minnesota and Wisconsin.

In recent years there has been a decisive, if not overwhelming, trend toward the use of the merit selection or the Missouri plan. According to the American Judicature Society, a citizens group formed to promote court reform, 27 states now select a portion of their judges through a merit selection process. No state has changed to any plan other than merit selection during the last 25 years.

A merit selection plan generally has three key elements: (1) a list of qualified candidates (usually three) developed by a nonpartisan judicial nominating commission made up of lawyers and nonlawyers; (2) appointment of the judge by the governor from the list developed by the nominating commission; (3) a short probation period for the judge followed by a retention election in which the judge has no opponent but must receive enough "yes" votes to be retained.

The major variation in merit selection states is found in the membership of the nominating commission. In some states the majority of the commission is made up of lawyers; in others nonlawyers constitute the majority. The number of commission members selected by the governor or bar associations also varies. In Missouri the nominating commission for appointing trial judges consist of two lawyers elected by lawyers who practice in the district, two nonlawyers appointed by the governor, and the presiding judge of the appellate court which hears appeals from the trial court. In theory, these members vigorously screen candidates and nominate three qualified individuals to the governor, who must appoint one of the three. The makeup of the commission is designed to represent the interests of the bar through the lawyers, the judiciary through the appellate judge, and the general public through the members appointed by the governor. Because of his ability to pick one out of the three candidates nominated, the governor has a significant role in the selection process.

Defenders of the election system argue that judges make law and that the public must have a voice in the lawmaking process

Proponents of merit selection contend that higher quality judges who have greater independence are placed on the bench through merit selection. The qualifications of judicial candidates are thoroughly reviewed by a panel whose members have the expertise necessary to evaluate those characteristics of a good judge. It is also contended that lawyers with exceptional judicial talents are more likely to seek judicial office through this nominating process than through a political nominating process. Lawyers would no longer have to spend years developing political support within the party in order to obtain a judicial nomination. Political influence would be minimized and the independence of the judiciary insured because judges would no longer have to run in partisan elections with the support of the party as is now required. The election system is criticized because a majority of the voters do not know the candidates in a judicial election; judicial campaigns usually attract little attention, and the general public has no criteria for determining which candidate will make a good judge.

Defenders of the election system generally begin with an impassioned plea for democracy. They argue that judges make law and that the public must have a voice in the lawmaking process. It is generally contended that members of racial and ethnic minority groups have a better opportunity to become judges through the local political processes than through a merit selection process. Furthermore, it is argued that politics are not removed from the selection process. Gubernatorial and bar association politics are merely substituted for local politics and the general public is left out of the system.

Illinois system

Supreme court, appellate court and circuit court (trial) judges are elected in Illinois by a partisan system. Candidates are placed on the ballot through a partisan primary or by petition and generally run with party identification and party support. Once elected, judges are prohibited from engaging in political activities, and they seek reelection through a nonpartisan retention ballot. To remain in office, a judge must receive an affirmative vote from 60 per cent of the voters. Only two judges have been voted out of office since the retention system was established in 1964. Supreme and appellate judges serve 10-year terms, and circuit judges serve six-year terms.

All associate circuit judges, approximately 40 per cent of the judges in Illinois, are appointed. They serve four-year terms. The associate circuit judges are selected by secret ballot cast by the elected circuit judges. All associate circuit judges are attorneys and perform virtually the same duties as a circuit judge, but in most counties associate circuit judges are generally assigned to the more routine cases such as minor criminal matters, family law, probate and juvenile court cases.

The history of how Illinois developed its current system of judicial selection points out the political consideration underlying the issue. Prior to 1964, when the judicial amendments to the Illinois Constitution went into effect, Illinois had a totally disorganized court system. There was no centralized court administrative office and there were courts with overlapping jurisdiction in counties and towns. In the early 1950's the Illinois Bar Association and Chicago Bar Association, with the support of several civic organizations, began a

December 1977/ Illinois Issues/ I5

campaign for court reform. This reform had the dual goals of establishing a unified court system and enacting a merit selection plan. Generally, this plan had the support of Gov. William G. Stratton and the Republicans in the legislature, but was opposed by the Democrats, particularly those Democrats from Chicago. In 1957, a compromise was reached in the legislature which passed a proposal for a constitutional amendment for a unified court system but included no changes in the system of electing judges. This proposed amendment was defeated by a slim margin in the statewide vote.

Two reforms

Undaunted, the proponents for court reform almost immediately began another campaign for a constitutional amendment, but the Chicago Democrats continued to resist changes in the patisan election system for judges. The need for a reorganization of the court system was of such importance that the legislature again reached a compromise similar to the one reached in 1957. A constitutional amendment was proposed which created the court system now used in Illinois. In 1962, the voters ratified this amendment which went into effect in 1964. Although the judges were still elected, there were two significant changes. First, judges no longer had to be reelected in a partisan election campaign since the amendments provided for the nonpartisan retention ballot. This change along with the prohibition that judges could not actively participate in political activities tended to make the judiciary less dependent on partisan politics. Second, the appointment system for associate circuit judges was created.

Both the Netsch/Wolf and the McCourt proposals require that appellate and supreme court judges be nominated by a judicial commission and appointed by the governor

The issue of merit selection surfaced again during the Constitutional Convention of 1969. It was vigorously debated in committee and on the floor, and the convention deadlocked over the issue. Finally, the convention reached a compromise which placed the issue before the general public on the ballot as a special question. In addition to voting on the entire constitution, voters had the option of selecting either Proposition 2 A (election of judges) or 2B (appointment). The campaign over the options was vigorous. Mayor Richard J. Daley and the Cook County regular Democrats actively supported 2A. Chicago newspapers, bar associations and civic groups generally favored 2B. In the final tally, 2A won with the approval of 50.2 per cent of the vote. Those favoring 2B cast 43 per cent of the vote and 6.8 per cent of the ballots showed no preference. Ironically, 2B carried Cook County with 50.1 per cent of the vote. Voters in the collar counties of DuPage, Kane and McHenry and the university counties of DeKalb and McLean (Bloomington) also favored merit selection.

Proposition 2A did make one significant change in the election process: judicial candidates are no longer nominated in party convention. The party primary is the principal vehicle through which judges are nominated for the general election, and the Constitution also provides for being placed on the ballot by petition. These changes had the effect of weakening the role of political party leaders in the elections. Current Supreme Court Justices James Dooley and William Clark defeated candidates backed by the Cook County Regular Democratic Organization in the 1976 judicial primary, and they won in the general election.

Legislative proposals

The debate lingers on. There are six proposals now pending in the General Assembly to modify the partisan election system. Most of these proposals would lead to a constitutional amendment and a referendum by the general public. Five of these bills propose a merit selection plan with a judicial nominating commission. One proposal would require nonpartisan election. Four of the five merit selection plans are very similar, and therefore only two of the proposals will be analyzed. In the Senate, Sen. Dawn Clark Netsch (D., Chicago) is the principal sponsor of Senate Joint Resolution/Constitutional Amendment 37 (SJR/CA 37) which is virtually identical to House Joint Resolution; Constitutional Amendment 1 (HJR CA 1) sponsored by Rep. Jacob Wolf (R., Chicago). The other merit selection proposal which significantly differs from the Netsch/Wolf proposal is HJR/CA 35 sponsored by Rep. James McCourt (R., Evanston), and it has the support of the Illinois State Bar Association. Both the Netsch/Wolf and the McCourt proposals require that appellate and supreme court judges be nominated by a judicial commission and appointed by the governor.

On the circuit court level the Netsch/Wolf plan would allow any county by referendum of its voters to adopt merit selection for its associate and circuit court judges. The McCourt proposal would mandate merit selection in the Cook County Circuit Court and would allow other counties to adopt merit selection. Both proposals are constitutional amendments which require a statewide referendum.

The proposals vary in the makeup of the nominating commission and the role which the governor plays. The Netsch, Wolf plan would authorize an 11-member commission for judicial circuits other than Cook County. A slightly larger commission would be used in Cook County. The commission in each circuit would consist of six nonlawyers and five lawyers. The nonlawyer members would be appointed by the governor with the advice and consent of the Senate, and no more than three of the nonlawyers could be members of the same political party. The lawyer members would be elected by the lawyers who practice and reside in the circuit. The governor would appoint one of the nonlawyers chairman, who could vote only in case of a tie. The nominating commission would review applicants for a vacancy and nominate three persons.

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The governor would choose one of these three candidates to serve as judge for a six-year term. At the end of the term, the judge would be on the ballot in a retention election.

The McCourt Plan for judicial circuits has a much more complicated method for selecting commission members. The role of the governor is reduced, the roles of the bar association and the local political parties are increased and the judiciary is also represented on the nomination committee. Specifically, the nominating commission would consist of five nonlawyers, six lawyers and a judge. The judge would chair the committee and could vote only in the case of a tie.

Two of the five nonlawyers would be selected by the governor from different political parties. Each chairman of the two political parties would select one nonlawyer member. The fifth nonlawer would be chosen by lot from a list prepared by the president of the local bar association, and the list would include one candidate from each of the major political parties in the circuit. Selecting the six lawyer members is even more complicated. One lawyer would be selected by the Democratic organization chairman and one by the Republican organization chairman of each county. The four remaining lawyers would be selected by the governor from a list of lawyers elected by the lawyers in the district. The governor would have one free choice from the list, but the remaining choices would be restricted to the lawyer who received the highest number of votes and who is of a different political party than the lawyer last appointed. The judge member of the commission would be elected by the judges in the district.

The nominating commission would review all candidates for a judicial vacancy and submit three names to the governor. One name would be chosen by lot, but the governor could accept or veto this candidate. If the governor vetoes the candidate, another candidate from the list would be selected by lot and would become the judge. Judges selected under this provision would not face a retention election until the expiration of their full term. The McCourt plan requires that the nominating commission review each candidate for retention and indicate whether the judge continues to be qualified. If the finding of the committee is negative, it would appear on the retention ballot.

Proponents of the McCourt plan argue that the complicated method for selecting the nominating commission is necessary to ensure that conflicting interests are represented. By using random selection and limiting the governor's discretion in selecting commission members, they contend that local interests are protected. Critics counter that the plan would deny the general public any voice in the process and would give too much power to local political parties and local bar associations. The McCourt proposal is clearly not a nonpartisan plan, but it does attempt to balance the various partisan and professional interests.

The remaining proposal in the legislature, House Bill 2267, sponsored by Rep. Woods Bowman (D., Chicago) would change the election method from a partisan to a nonpartisan system. This change could be implemented by legislative action without the need for a constitutional amendment. Candidates for judge would run in a nonpartisan primary; no party designation would be allowed. Candidates would become eligible for the primary by filing petitions with the signatures of 500 qualified electors. The candidates who receive the two highest number of votes would run in the general election without party label. Proponents claim that this plan would reduce the political parties' control over the primary and would lead to a more independent judiciary, but critics of Bowman's proposal contend that parties would still become involved behind the scenes. Furthermore, party labels, for better or for worse, are one of the few indicators the public may have of the judicial philosophy of a candidate.

All of the proposals pending in the legislature are now on the Interim Study Calendar in their respective houses of the General Assembly. The Illinois Bar Association has endorsed the McCourt plan. A citizens committee, the Committee on Courts and Justice, has endorsed the Netsch/Wolf proposal and is preparing a campaign to actively work for its adoption. If either proposal passes in the General Assembly, voters of Illinois may be given their fourth opportunity in 20 years to vote on judicial reform.

The voters will hear claims that one system or another leads to a better judiciary and minimizes political interference. In analyzing these claims, it must be kept in mind that law cannot be separated from politics. The issue is not eliminating politics from the selection process, but determining the proper amount of political control and from what source. In analyzing merit selection plans the membership of the nominating commission becomes crucial. The commission not only evaluates the technical qualifications of judges, but has a significant role in determining the future philosophic and political viewpoint of the judiciary. The public must be certain that this commission adequately represents the views of the general public.

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