June 24, 2022

Opinion

Jim Nowlan: The Supreme Court that appoints itself

Six of the seven members of the Illinois Supreme Court reached their lofty bench by appointment, although the Illinois Constitution is quite clear members of the court shall be elected. In effect, the court has been appointing itself.

The following practice has developed in Illinois: Illinois Supreme Court judges are elected to the state high court on a partisan basis for 10-year terms. When a vacancy occurs as a result of retirement or whatever, the state Supreme Court appoints a replacement until the next election. This appointment of their own members is unique in the United States

As the practice has developed, a supreme court judge makes his or her retirement effective just after the final date for filing candidacy petitions has passed. This means the Supreme Court makes an interim appointment that is effective for more than two years.

The judges defer to the wishes of the retiree as to his/her own successor. This is similar to “aldermanic privilege” in Chicago, where the 50 aldermen nearly always vote to support the wishes of an alderman on matters within her/her ward. You scratch my back; I’ll scratch yours.

In effect, Illinois Supreme Court judges appoint their successors. But, retort the judges, the appointee ultimately has to run for election to serve a full 10-year term. Yes, but the fortunate appointee runs later with all the trappings of incumbency. You have seen the billboards: “Keep Illinois Supreme Court Justice Mary Quite Contrary on our state’s highest court. Retain Justice Quite Contrary June 28.”

This dampens interest among lawyers and lower court judges in contesting the “incumbent,” and few do.

So, basically, the Illinois Supreme Court appoints itself.

This came to mind when I read that Supreme Court Judge Rita Garman recently announced her retirement (doing so after the candidate filing deadline). Immediately thereafter, the court (meaning Garman, because of “aldermanic privilege”) appointed Appellate Court Judge Lisa Holder White to take Garman’s place on the high court bench. Indeed, in earlier years, Garman had also appointed Holder White, first to the circuit bench, and then to the appellate bench.

All of this appointing has become a high-toned form of job patronage, and there is lots of it. To illustrate, each Illinois Supreme Court judge is authorized, by the court, to make one or more personal appointments to the appellate bench, without cover of a filling a retirement or whatever. For example, ex-supreme court judge Tom Kilbride had appointed Robert Carter to the appellate bench for 15 years straight, without him ever having been elected, until 2020, when the court appointed Kilbride protégé Carter to the Supreme Court.

This is not new. In the 1960s, for example, a Republican judge from Canton named Albert Scott served as chief judge of the 3rd District Appellate Court (an honorific, rotating position), without ever having been elected to the appellate court. Indeed, Scott was rejected by the voters in his bid to be elected to the appellate court in 1974, yet was subsequently appointed again as a member of that court.

The supreme irony of this appointing process is that it may give us better judges overall than would pure election. What do you and I know about judicial candidates? For example, Judge Lisa Holder White is, I am told, a fine judge. She is also an African-American from modest financial background. So, she may never have had a chance via the election process to become a circuit, appellate, and first Black female Illinois Supreme Court judge.

Yet the process of appointing your successor is fraught with problems. Does it result in perpetuation of a particular legal philosophy? For example, the trial lawyers have always had strong influence within the state high court. These lawyers oppose, of course, any caps on awards to their clients, which would in turn cap their fees. These savvy lawyers have always been big contributors to Supreme Court judges.

And, does the process cause lawyers and lower court judges who want to be higher court judges to suck up to those who might appoint them, and generally exclude those who don’t?

I am a Ph.D., not a JD, and I have not followed the courts closely, so I have more questions than answers.

Selection of judges has been a quandary for American democracy throughout our history, because of the separation of powers, and our belief in the election process. Should the executive or the legislative branches, or the voters, select judges?

No system is perfect, and politics, that is, who gets what, plays a part in any selection process. Personally, I like the Missouri Plan, where nonpartisan panels of lawyers and non-lawyers come up with nominees of acceptable candidates, and the governor selects judges from among the names given him. A number of states have adopted this plan, or something like it.

I have trouble with the Illinois system. In effect, the high court appoints itself.

• Jim Nowlan is a retired professor and former Illinois legislator and state agency director. He has worked for three unindicted Illinois governors.