By STEPHEN DANIELS and REBECCA WILKIN

Illinois' appellate judges: ambivalent policymakers

The average Illinois appellate judge is a white male, aged 59, seven years older than his white, male counterpart on the trial bench. Although the backgrounds of appellate judges are similar, they have varying perceptions of the roles they play in the legal system. A recent Sangamon State survey provides a composite picture of this often overlooked officeholder

The judicial districts of Illinois Supreme and Appellate courts

RECENTLY, a candidate for the Illinois Appellate Court remarked, in apparent frustration, that he has been campaigning for an office that over 90 percent of the people don't know even exists. Compared to trial and supreme courts, appellate courts work in quiet oblivion, their activities drawing little public attention. There are, for example, no "good government" groups who have adopted the Illinois Appellate Court as their cause and no appellate "court watching" projects. The Illinois Appellate Court is in no way unique in this regard. According to political scientist Stephen Wasby, for instance, federal appellate judges have referred to their court as "the court nobody knows." Most attention has been focused on supreme courts, and this he notes has diverted attention from the courts in which the bulk of appellate business takes place — the intermediate appellate courts. Illinois' Appellate Court functions in five districts (see map) and is staffed by judges elected on a partisan ballot.*

In an earlier article on Illinois' trial judges (Illinois Issues, January 1982), our purpose was to replace some "fictions and half-truths" with a bit of reality. Here the situation is rather different. There aren't many "fictions and half-truths" to replace. There is just a void. We intend to begin filling it with some specific background information to provide perspective, a collective portrait of the state's appellate judges, a brief overview of their dockets, a summary of the judges' views of their role, and some speculation on the implications of what we discovered about Illinois' appellate judiciary.

Our discussion is based upon the results of a survey mailed in the fall of 1981 to all 42 judges then serving on the bench in the five appellate districts of the state. (The survey was the same used to survey trial judges in 1980, and it included questions on the judges' political and religious leanings, as well as personal background.) Of the 42 names provided by the Administrative Office of the Illinois Courts, 28 — or 66.7 percent — responded.

Background

Although a little over half of the states still structure their court systems without a court between the trial and supreme courts, Illinois has had an intermediate appellate court since 1877. Illinois, however, did not have a distinct set of appellate judges until the passage of the 1964 Judicial Article. Before that the court was staffed by trial judges assigned there by the Illinois Supreme Court. In the past its jurisdiction was limited, and in many situations litigants could bypass it altogether and go directly to the Illinois Supreme Court from the trial court. In addition, it was also comparatively easy to go from the Appellate Court to the Supreme Court. Consequently, the business of the Appellate Court was limited as was its ability to make policy and to affect the legal system.

Changes brought about by the 1964 Judicial Article have altered the situation significantly, however. In addition to a separate and distinct set of appellate judges, the Appellate Court is now mandated by the Constitution rather than being merely a creation of the General Assembly. Perhaps most importantly, the jurisdictions of the Appellate and Supreme Courts changed. The Supreme Court now has extensive discretionary control oval docket, a not too tacit recognition of the court's role as a policymaker for the state. This means that for most matters the Appellate Court is the court of last resort. In the words of one appellate judge: "In about 90 percent of the cases we write on, we are the court of last review so our decisions are of the utmost concern to the courts at the trial level." This makes the court an important policymaker regardless of whether the judges — or anyone else — care to admit it. Its decisions are usually meant, to borrow a phrase from political scientist Herbert Jacob, to be "guideposts for future actions," policies to be followed. This very idea is found in the comments of another judge, "[i]n some cases we make new laws which will guide trial judges and lawyers." Given this enhanced policymaking role for the appellate court, it is important to know more about the judges who work at this level.

The judges

As with our earlier essay on judges, our interest is in what the recruitment process has provided the state. This process, it must be noted, is

*Judges are elected for 10-year terms on a partisan ballot with additional terms coming after a retention ballot. If a vacancy should occur or if a judge fails on a retention ballot, the Illinois Supreme Court has the authority to appoint a replacement. This judge must then run on a partisan ballot at the next general election.

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much broader than the selection process. In the simplest fashion, asking about recruitment means asking what kind of person becomes an appellate judge, and what difference — if any — it makes. In particular, we are interested in three types of characteristics: personal, professional and political. In our discussion of trial judges we created an "average" or composite judge by looking at the overall averages and percentages in the responses to the survey. We found that to be a profitable approach and will use it here.

In terms of personal characteristics, the average appellate judge is rather similar to his trial counterpart (see table). He is a white male, 59 years of age. He was born in Illinois, and has lived most of his life in the district he now serves. While the trial judge came to the bench in his middle forties, the appellate judge reached his position in his early fifties. He has served on the appelate bench for a little over seven years. These differences in average age and age at reaching the bench are easily explained by the fact that the average appellate judge was most likely to have been a trial judge before becoming an appellate judge. And he served nine years as a trial judge, about two years longer than the average trial judge, meaning that he probably became a trial judge in his early to mid-forties.

As with the trial judge, the odds are that the appellate judge was graduated from an Illinois college (68 percent), and received his law degree in the state as well (82 percent). His undergraduate degree, typically, was in history or political science, and it is less likely to be in economics or in a business-related field than the trial judge's. In terms of religion, he is more likely to be Protestant than the trial judge. Neither are very likely to be Jewish.

As a rough indicator of the social status of appellate judges, we asked them, as we had asked the trial judges, their fathers' occupations. The responses suggested that the average appellate judge is more likely to come from a somewhat higher social status, and far less likely to have come from a farming or blue collar family than the trial judge. Most appellate judges' fathers had a professional/managerial occupation; 26 percent of the appellate judges' fathers were in law as compared to a bit over 10 percent for trial judges.

In terms of professional background, we found that the average appellate judge came to his position from the trial bench (75 percent) with an average tenure of about nine years at that level. Only 11 percent came from private practice, a marked difference from the trial judges where two-thirds came from private practice. The average appellate judge is unlikely to have had much professional training in addition to his law degree, but he is more likely to have had some than the trial judge. He considers himself especially competent in at least one area of law or practice (93 percent), and probably two (75 percent) — somewhat more than the trial judge. The areas of special competence are most likely to be criminal or trial litigation. Criminal is the most often listed specialty, 31 percent listing it as their primary specialty and 24 percent as their second (for the trial judges it is 28 percent and 11 percent). Only two judges report appellate litigation as a specialty — one as his primary and another as his fourth.

Politically, the appellate judge is more likely to be a Democrat while the trial judge is a bit more likely to be a Republican, and he is much more likely to be stronger in the strength of his party preference. This is reflected, perhaps, in the fact he has been a political officeholder at least once in his career before becoming a judge (65 percent as compared to 30 percent for the trial judge). No appellate judge responds that he is weak in his preference, and almost 60 percent say their preference is strong. Trial judges, by contrast, are far more likely to be moderate in their degree of partisanship. The difference in partisanship may be attributable to the fact that there are simply far fewer appellate judgeships, that generally speaking they carry more prestige, and they are seen as more important. Consequently, it is unlikely that the political parties will wholeheartedly support someone for election to the appellate court unless the candidate is clearly among the party faithful.

The appellate judge is likely to be middle of the road to conservative in his stand on the issues, but he is on the average more moderate than conservative whereas the trial judge tends to be more conservative than moderate. Sixty-one percent of the appellate judges saw themselves as "middle of the road" or "moderate liberal," for example, while 47.8 percent of the trial judges placed themselves in those categories. Finally, even though the formal selection process calls for partisan elections, the average judge is just as likely to have been initially appointed to the appellate bench as elected (there was a 50-50 split for those responding).

Five things emerge from this rough portrait of the average appellate judge. First, the recruitment process produces a judiciary almost exclusively white and male, as is true with trial judiciary. Second, there is a very distinct recruitment process at work which tends to bring trial judges to the appellate bench. This means, in effect, that most appellate judges go through a two-step recruitment process — the first step which brought them to the trial bench and the second which brought them to the appellate bench. The former is probably the more important, for it acts as a filter. If an attorney is unable to make it through this filter, the odds are that he or she will not even be able to reach the second step.

Third, appellate judges are somewhat conservative, but not as much as trial judges. Fourth, there is a degree of localism in the judges' backgrounds, but in comparison to trial judges it is diluted because appellate districts (with the exception of Cook County) cover a larger and more diverse area than trial court circuits. As a result, it is difficult to say that they reflect with fidelity the particular norms and values of their districts except in the most general way, although we will see later that this tendency may be important. Finally, the personal, professional and political characteristics of appellate judges do not appear to be significantly different from those of trial judges. We will see, though, that there are some important differences in the way appellate judges view their role, influenced as they are by the dockets they deal with in the course of their work.

The docket

As a general statement, appellate dockets in Illinois and elsewhere tend to be very different from trial dockets. Moreover, appellate judges normally sit in panels of three (rather than individually), and face the full range of

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possible cases. They are not, as some trial judges, assigned only to a particular area of law. While trial dockets may vary considerably, there is comparatively more similarity in appellate dockets across the state. On the average, the judges characterize their dockets as almost one-half criminal matters (48.7 percent), not significantly different from what the most recent report of the Administrative Office of the Illinois Courts shows (52 percent criminal) in 1980. This is far higher than the percentage of criminal for the state's trial courts (less than 10 percent in 1980). The rather high percentage of criminal matters, we suspect, may affect the way appellate judges see their role. In other words, their perception of their function may well be influenced by the nature of their business. The high percentage of criminal matters could lead in part to a rather narrow conception of function — one concerned largely with correcting the errors of trial courts and the like, and one that is primarily concerned with issues internal to the legal system itself rather than broader issues external to the legal system.

The remainder of the typical appellate docket has common law as its second largest area of business, followed by divorce. No other area, on the average, accounted for as much as 10 percent of the docket. Such high volume areas for trial courts as traffic and small claims are not important factors.

Perceptions

Students of human behavior have long thought that the way in which people view their roles can affect how they play those roles, and the most interesting aspect of our survey was the judges' own perceptions of their roles in the appellate court. We characterized the trial judges as being essentially pragmatic fact finders with a very limited view of their function: They do not consider it their task to remake the law, especially since much of their work must be done quickly. In contrast, the average appellate judge is more an interpreter of the law and a reluctant, ambivalent policymaker.

The average appellate judge believes his position requires that he play a less limited, less pragmatic role than the trial judge's, and that his role has broader effects on the legal system. This can be seen, in part, in the judges' responses to open-ended questions about the difference between the trial and appellate functions, and about the nature of the appellate function itself. The average appellate judge is likely to characterize the difference in terms of the limited, pragmatic and immediate nature of trial work, and in terms of fact-finding. This is essentially the same way the trial judges express the difference. According to one of our responding judges, "[a]n appellate judge has time for deliberate action while a trial judge of necessity must make many decisions without the benefit of time for research." A second appellate judge characterized this by saying that "[t]he trial judge has to make snap decisions whereas we have time to research the law."

In general, the judges see the appellate function as more systemic and less

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immediately pragmatic. One judge expressed it as being "... more concerned with [the] system as a whole, [with] uniform application of principles rather than concern for [the] immidiate dispute between the litigants." This orientation is a limited one — limited by those systemic concerns rather than by urgency and immediacy. The average judge seems concerned with problems internal to the legal system, and not with broader issues external to the system. It is interesting that in their responses to these questions — where they could say whatever they pleased — not a single judge characterized the appellate function in terms of social policy or social change. The heavy load of criminal matters and the experience of most as trial judges probably militate against such a broader view.

Their responses suggest that the typical appellate judge is not an innovator, a social engineer nor an activist. He is more narrowly legalistic. This narrow, limited viewpoint is illustrated, in part, by the ranking of personal qualities felt to be most important. As with the trial judges, honesty and integrity are most likely to berated first. Knowledge of the law is rated a close second, followed by impartiality. Awareness of social problems is not, apparently, considered important. No judge rates it as the most important quality, and only one rates it as much as the third most important.

While the survey suggests that judges feel their roles are limited, it also reveals their ambivalence about many of their functions and responsibilities. They responded to the same list we posed to the trial judges, and few of the responses are similar. The average appellate judge, like the trial judge, is administratively oriented, although not as much. He wants to clean up the docket but to do so without sacrificing quality for quantity. He really doesn't see his function as arbitrating the rival forces in society, and he is ambivalent about whether courts are an appropriate forum for the disadvantaged elements in society. Here the similarities end, for the average trial judge is more certain about how to attend to his concerns.

The problem for the average appellate judge is how to attend to his systemic concerns. He appears to be more sure of what the appellate function is not about than what it is about. The average judge is unsure about how flexible he should be in his decision-making. He is very ambivalent about how much he is constrained by existing law, and is ambivalent about whether it is usually best to apply the appropriate rule strictly. He is even unsure about whether law should be seen as a framework within which to operate with day-to-day decisionmaking, requiring him to exercise his own judgment and discretion, or whether common sense is important. He is somewhat ambivalent about whether judges

Their responses suggest that the typical appellate judge is not an innovator, a social engineer nor an activist. He is more narrowly legalistic

inevitably make law, but interestingly he is likely to admit to a limited degree of lawmaking since in interpreting statutes judges often try to guess what the legislature intended.

The large degree of ambivalence in our composite judge requires a closer examination of the judges' views. There are some noticeable general patterns in responses, and some noteworthy differences among the five appellate districts (see map). Judges who are more flexible in their decisionmaking tend to have come from the trial bench, to have spent more time on the trial bench, and to have trial litigation as their primary specialty. There is a point, however, at which more time on the appellate bench may breed less flexibility for some judges. The less flexible tend to come from somewhere other than the trial bench, and to have criminal law as their primary specialty. Those who have somewhat broader vision of their function are likely to be more liberal, to be Democrats, to be a little less partisan, and to have a bit less criminal business. Those leaning toward a narrower view are more likely to be Republican, to be more partisan, and moderate to conservative. Finally, those who see more lawmaking in their function tend to be much more liberal.

Perhaps more interesting and more significant than these very rough patterns are the differences among the five districts. Lawyers have always known that where you litigate and who presides can make all the difference (this gives rise to what is commonly known as "forum shopping"). The differences we have found among the districts suggest that for at least some things the district of the Appellate Court in which one litigates can make a difference. This should not be surprising since the politics and culture of various parts of the state differ significantly.

In the 1st District, which covers Cook County, the average judge is a Democrat, moderate to liberal in outlook, with a high percentage of criminal matters on his docket. He is older than his counterparts in other districts, and is somewhat more flexible in approach. He is quite likely to see himself as a lawmaker, and in most respects he is more liberal than judges in other districts, with a broader view of the appellate role.

The judge in the 2nd District, which covers the northern tier of counties, is quite different and has perhaps the most limited view. He is the youngest judge and has the shortest tenure as an appellate judge. He is a Republican with a distinct tendency toward conservatism. He has a mixed to narrow view of the appellate function and is rather inflexible in his approach. He is unsure about judicial lawmaking.

In the 3rd District, which spans the state from the Quad Cities to Kankakee, the appellate judge is likely to be a Democrat — a strong one — and a bit liberal. He is the second oldest judge and has by far the longest tenure on the appellate bench. His docket has the smallest percentage of criminal matters. He is the most flexible judge, with a broad view of his function, although he is somewhat ambivalent about judicial lawmaking.

In the 4th District, which stretches across the center of the state from Quincy to Danville, the judge is a strong Republican and conservative. He has the highest percentage of criminal matters, and his approach to decisionmaking seems to be ambivalent with a tendency toward less flexibility. He has a narrow view of function but is unsure about judicial lawmaking.

In the southern one-third of the

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state, which comprises the 5th District, the judge is a Democrat but middle of the road in outlook. He has had the longest tenure as a trial judge. Unlike the other judges who are Democrats and less conservative, he is not very flexible in approach. He will allow some room for judicial lawmaking, and tends toward a broader view of function.

In sum, judges in the 1st and 3rd districts appear to have broader and less limited views of the appellate functions than do their counterparts elsewhere. The judges in the 1st District have the broader view of the two, while the 3rd District judge is somewhat more flexible. Judges in the 2nd and 4th districts have the narrowest and most limited views of their roles, while 5th District judges fall in the middle, although they are closer to those in the 1st and 3rd. The judges who have a broader and less limited view tend to be Democrats, more liberal, more moderate in party preference, and more experienced on the appellate bench. Those with a narrower, more limited view are likely to be Republican, stronger in partisanship, more conservative, and somewhat less experienced on the appellate bench.

Implications

The judges' responses to the survey suggest some implications for the judicial system in Illinois. First, as in the case of trial judges, the often emotional debate in Illinois over how judges are selected may, to a degree, be beside the point. Even though equal numbers of judges responding to our survey were initially elected and appointed, few noteworthy or significant differences emerge between the two groups. The two groups really don't differ much in their degree of partisanship, ideological stance, age or family background, and elected judges are less likely to have come from the trial bench, although a majority do. Appointed judges come almost exclusively from the trial bench. There appears to be no significant relationship between the view a judge holds of his function and the way in which he was initially placed on the appellate bench, although appointed judges may be more disposed toward the inevitability of judicial lawmaking.

What is more important is the recruitment process — the process providing the pool of potential appellate judges. Generally speaking, that pool consists largely of sitting trial judges, almost all of whom are white and male. This major shortcoming of the recruitment process for trial judges aggravates the recruitment process for appellate judges. The appellate recruitment process, then, is almost guaranteed to produce an appellate judiciary equally unrepresentative. Only the naive would dismiss representativeness as unimportant on the ground that it is the "Law" that really makes the decision and not the person wearing the robe. This kind of mechanical view of decisionmaking was long ago exposed as a myth. The very fact of their place in the judicial system means that the appellate judges make policy even if they are reluctant or ambivalent about it. They are not merely interpreting the law, they are doing more and this makes representativeness important.

Second, this recruitment process along with the nature of the appellate docket may well contribute to the narrow and somewhat limited view of the appellate function. Most judges come from the trial bench where judging is limited and highly pragmatic. The hallmarks of trial judging, out of necessity, are discretion and common sense. If we look at our composite appellate judge, reluctance and ambivalence seem to be the hallmarks of his judging. The habits of mind his early trial experience likely taught him are inappropriate for his present function. But no one consistent pattern emerges on the judges' approach to appellate judging.

The relatively heavy criminal load probably militates against most judges developing a broader view of their function, one concerned less with internal, systemic matters and more concerned with external questions and social policy. This heavy load of criminal cases may also reinforce the tendency toward narrowness and limitedness bred by trial experience. In reviewing criminal matters, the appellate court is primarily reviewing the decisions and actions of trial courts concerning procedural matters and interpretations of the state's criminal statutes. This means looking closely at the small parts of the legal machine and their workings and then doing legal fine tuning. It directs one's sights to very particular internal minutiae of the legal system. To a degree, then, and not unlike the judge, the job helps to mold the judge. What small differences there are in viewpoint seem to be a function of district more than any one characteristic in particular. And it would seem that differences in viewpoint between trial and appellate judges could be traced to the differences in what they do.

More generally, it is difficult to say much more about implications because so little is known about state intermediate appellate courts. They are, quite literally it seems, the courts nobody knows, and most current interest in these courts will do little to rectify this. It is geared more toward technical and administrative problem, such as delay or the consistency in decisions among districts or automated record keeping. No one is likely to argue that such concerns are unimportant. But if technical concerns gain primacy in the analysis of courts then administrative efficiency, pure and simple, is likely to become the criterion for evaluating performance. This may breed a blindness or status quo orientation that assumes all important questions are internal questions about administrative efficiency and that all is well with the system once a certain degree of efficiency is reached. Broader concerns about such things as fairness, representativeness, the function and role of the courts and the impact on the state may be pushed aside by a too consuming interest in efficiency. Judges' views already tend to be narrow and constrictive, and an even greater emphasis on technical and administrative matters would further aggravate this tendency. Reforms that encourage such myopic views may, in the long run, create more problems than they solve.

Stephen Daniels is associate professor of political science and public affairs at Sangamon State University, Springfield. Rebecca Wilkin holds an M.A. in legal studies from Sangamon State and is a research associate in SSU's Center for Legal Studies. They also co-authored with James Bowers the article, "Illinois trial judges: pragmatic fact finders," in January.

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