As a Chicago Judge Goes on Trial, a Proposal to Fix the System that Keeps Bad Judges on the Bench
A couple months ago I wrote a column about the Cynthia Brim mess—the Cook County judge charged with misdemeanor battery who was subsequently retained in re-election, and is now expected to plead not guilty by reason of insanity—and how it relates to our well-intentioned but flawed method of retaining judges. Lisa Donovan's most recent update on the story suggests she might have a decent case:
Witnesses — namely the sheriff’s deputies who said they witnessed the incident and assisted in the arrest — describe the judge’s behavior as bizarre in arrest reports, noting she was “dazed, confused and incoherent” and at one point “catatonic.” Another sheriff’s office report details what happened after she’s handcuffed, hauled to a basement holding cell in the Daley Center and charged with battery for shoving the deputy: “Due to unresponsive and motionless behavior while in custody it was determined that it was in the best interest of [Brim] that she be evaluated by a physician before being released under her own recognition.”
If Brim had been an otherwise good judge who happened to suffer from something like a psychotic break, she might be a more sympathetic figure as an elected official. But Brim has a history of poor evaluations, like this one from the Judicial Performance Commission of Cook County (PDF):
More than half of respondents indicated a lack of confidence in her legal abilities. Even though the judge hears generally non-complex matters, her rulings are often described as unpredictable and delayed. Respondents indicate that they regularly file motions for substitution of judge, despite the cost and inconvenience to their clients.
Additionally, there are many complaints that Judge Brim is late to take the bench. Attorneys report repeated continuances because court starts late and because the call is handled inefficiently. Attorneys feel that Judge Brim is particularly rude and unaccommodating of counsel who are on call in multiple courtrooms. Many attorneys described her as “consistently late” and there is some concern that her case management delays resolution of cases.
In 2000, she was given negative or not-qualified evaluations from ten of the 11 groups that examined her. She was retained, and again in 2006. This is, of course, entirely common and predictable, but at least a few people thought that Brim's courtroom incident, disturbing enough on its own, would also call attention to her disappointing performance as a judge. And she scraped by again, just as bad judges have for decades.
Judicial elections were not intended to keep hacks on the bench; quite the opposite. As initially conceived, they were meant to give voters a hand in keeping the judiciary independent from party hacks—and were developed by a Northwestern Law prof who'd seen the mess that early-20th-century bosses in Chicago made of the venue in which citizens are most at mercy of the government, and the one that can most directly effect the lives of its citizens. About 50 years later, the citizenry doesn't see fit to boot even judges like Brim.
As I mentioned in my column, we can't entirely blame ourselves. The judicial ballots are lengthy; the performance of individual judges is rarely reported on, at least in comparison to other elected public officials; and generally speaking, people rarely have opinions on judges (including many of the lawyers I know, since the county has multiple courts). It's not a very good system and not an easy one to fix, though I did mention some measures that have improved the situation elsewhere, such as an independent commission that would boil down the numerous evaluations—which tend to agree, but also take different approaches and formats, some better than others—into something detailed, comprehensive, and balanced between qualitative and quantitative evaluations.
And now state rep Kelly Cassidy has proposed specific reforms (emphasis mine):
On Friday, Illinois State Representative Kelly Cassidy introduced a bill to amend the Illinois Constitution with regard to the retention of sitting judges. Rep. Cassidy’s bill would create a “Judicial Retention Commission in each Judicial District to evaluate the qualifications of Supreme and Appellate Court Judges seeking retention” as well as “a Judicial Retention Commission in each Judicial Circuit to determine the qualification for Judges for retention in the Circuit.” The bill also “provides for the impaneling of additional Judicial Retention Commissions in a Circuit if more than 40 Judges have filed a declaration of candidacy for retention.” The Amendment would mean that that Judges found qualified are retained in office, but those found unqualified by the Commissions could choose to seek retention in retention elections.
It's an intriguing idea, and one that I came across when researching: an independent commission looks at the judges, and the ones that are found qualified are automatically retained. The ones that aren't—generally a small number—get put up for a vote. It allows the public a voice in the matter, while focusing their intent. Rather than completing line after line of arrows for qualified judges that are essentially guaranteed retention, voters are just asked to concentrate on the borderline cases.
And there's more. It would have a balance of lawyers and non-lawyers, a feature of judicial commissions in other states, and bipartisanship and racial diversity are built in to the appointments. It's an amendment, so the bar is high, but one worth evaluating and keeping an eye on.
Photograph: Marxchivist (CC by 2.0)