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Choosing Cook County judges, Justice Ginsburg reminds us, should not be a popularity contest

It’s difficult for voters to improve the quality of the bench on their own, when there are so many candidate names.

U.S. Supreme Court Justice Ruth Bader Ginsburg visits the University of Chicago for a conversation event with Harris School of Public Policy Dean Katherine Baicker at the Reva and David Logan Center for the Arts last week.
Ashlee Rezin Garcia/Sun-Times

Take it from RBG: Electing judges, rather than appointing them, is bad for the cause of justice.

When U.S. Supreme Court Justice Ruth Bader Ginsburg visited the University of Chicago last week, she took a moment to remind us why Illinois should rewrite its constitution, which would require a referendum, to end the popular election of judges.

“I think popular election is a very bad way to select judges,’ Ginsburg said. “And judges campaigning for office, saying, ‘If you elect me I’m going to be tough on crime’ — it’s a spectacle. I don’t know any other country in the world where judges are elected.”

That’s a referendum we’d love to support.

Cook County has certainly seen its share of spectacles over the years. We’ve witnessed everything from outright incompetence to judges who looked the other way when defendants complained about police torture.

It’s difficult, however, for voters to improve the quality of the bench on their own when there are so many names, and the candidates operate in courtrooms far from the public eye. Who in the general public knows which judicial candidates have a strong grasp of the law or the appropriate demeanor?

In the party primary elections this coming March, voters in Cook County will be asked to choose from as many as seven candidates for the Illinois Supreme Court and a boatload more for lower courts. In the November balloting, voters will be asked to choose among primary winners, and they also will be confronted with perhaps 70 names on a nonpartisan “retention” ballot, meaning they will be asked to choose which judges to keep on the bench.

Some voters will throw up their hands and leave the judicial portion of their ballots blank. Others will check off names with the uneasy feeling that they just might be throwing the rascals in instead of out.

That’s why judges are almost always retained.

In 2018, Judge Matthew Coghlan was voted out of office after opposition from progressive organizations and lawyer groups, but it was the first time that happened in 28 years.

There’s a better way.

As a start, state Rep. Kelly Cassidy, D-Chicago, plans to revive an effort to replace the retention system with a system largely based on merit. Under her proposal, backed by the Chicago Appleseed Fund for Justice and the Chicago Council of Lawyers, a merit board — rather than the voters — would decide which judges have demonstrated the qualifications to remain on the bench.

Candidates who didn’t make the cut — perhaps four or five in each election cycle — would be allowed to run anyway, but the public would know there’s a reason those candidates are on the ballot.

The merit board would include appointees chosen by a variety of public officials to prevent any single person from controlling who remains a judge. The board would be made up of lawyers and non-lawyers with strong civic backgrounds. This change would require both legislative action and a constitutional amendment.

“I feel more strongly than ever we are doing this wrong,” Cassidy told us.

Many other states have adopted some form of merit selection. They have created nonpartisan commissions of lawyers and others who screen applicants to ensure they are qualified to sit on the bench. Elected officials then pick among the finalists.

No system is perfect. In Arizona, Gov. Doug Ducey was accused this month of manipulating that state’s merit selection system to appoint a political ally to the Arizona Supreme Court.

But at least the other states avoid what we routinely see in Illinois, especially Cook County: Judges being picked by the politicians who slate them or by big-money donors.

Merit selection also means judges don’t have to ask donors, usually lawyers, for money to fund a political campaign. That’s a big conflict of interest when those lawyers appear before judges who are beholden to them.

A merit system would have to be designed carefully to ensure a fair representation of minorities, women and all areas of the county.

But to improve the quality of the bench, it would be well worth the effort.

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