(This article is reprinted with the permission of the author, who first posted it on Facebook. Injustice Watch welcomes submissions from readers.)
In the last couple of days, the bar association ratings of judicial candidates in Cook County have become the subject of some media scrutiny, and as a former co-chair of the Decalogue Society of Lawyers’ Judicial Evaluation Committee, that made me pretty excited.
I’d love it if more voters paid attention to our ratings. It would bring us a step closer to filling the judiciary in the Circuit Court of Cook County with qualified people. So the scrutiny is definitely welcome.
However neither of the articles I read actually discussed the process that the bar associations go through before arriving at their ratings, and this was a critical flaw their presentment of the subject. So, from the point of view of someone who was recently an insider, I’d like to offer this explanation of the kind of care and concern the bar associations put into their ratings. This piece is very long, but, as you will see, the process is not simple, and it takes a long time to adequately describe it.
But first, some important caveats. I was not asked to write this by any person or organization. Though I was one of the chairs of the Judicial Evaluation Committee (JEC) of the Decalogue Society of Lawyers (DSL) (or, as Injustice Watch called us, “Jewish lawyers”) up until mere months ago, I no longer occupy that role, and nothing I write here should be perceived as bearing their endorsement. Similarly, I am not writing this as a spokesperson for any of the bar associations involved with the Alliance of Bar Associations for Judicial Screenings (referred to by Injustice Watch as “the affinity bars”).
I’m writing this solely on my own behalf. I have no agenda. I’m just reporting the facts with no BS. Finally, nothing I’m writing has anything to do with the Chicago Bar Association (CBA)’s very separate process of rating judicial candidates. The Alliance of Bar Associations was formed in part as a response to the perception that the Chicago Bar Association’s ratings were politicized. I have no idea whether that perception was correct when the Alliance was formed, or whether that perception is correct today. The CBA’s ratings sometimes make little sense to me, but I’m not part of their process and I never have been, so I couldn’t possibly comment on how they do things.
I’m only writing about the eleven bar associations that make up the Alliance of Bar Associations for Judicial Screenings (or, just “the Alliance.”) The Alliance is a group of eleven bar associations, the largest of which is the Illinois State Bar Association. The purpose of the Alliance is to share resources for the purpose of conducting investigations in to each candidate for judicial office. It would be nearly impossible for any organization, operating without a phenomenally large budget, to do the kind of quality and painstaking investigation into every candidate that the Alliance does. With eleven organizations, we’re able to give the kind of individual attention to every candidate that the voting public deserves.
For each candidate, the process begins with an application. It asks for the candidate to provide every office in which he or she was employed as an attorney, to identify every bar association or community organization the candidate is a member of, to describe the kind of practice the candidate is currently involved in, and for the candidate to provide contact information for judges and opposing attorneys on recent litigation matters, trials, and recent other matters that took place in the context of the candidate’s legal career (like real estate transactions).
The application form also asks for the candidate to identify press they or their cases have received, and to identify any allegations of malpractice that have been made against the candidate. It closes with several narrative questions, including questions that ask the candidate to identify legal issues (without suggesting how the candidate would rule on such issues of concern) that are specific to women, members of minority groups, and members of the LGBT community.
There are no right answers to those questions, and the questions specifically do not require the candidates to take positions on any issues. But if a candidate for judicial office is not able to identify, for example, the fact that the proportion of prisoners awaiting trial in Cook County Jail who are black does not reflect the percentage of Cook County residents who are black, the candidate may not be living on earth. Thoughtful answers to these questions are well regarded, regardless of what the answers are.
Before each candidate is interviewed, the applications are divided among the members of each bar association participating in the judicial evaluations process, so that each and every candidate can be investigated. Each investigation is extremely time consuming. After going over the candidate’s materials, an investigator calls as many individuals, beginning with those identified in the candidate’s application materials, as they can. Investigators also try to find as many individuals as they can who are not provided by the candidate’s application materials.
This is because candidates are more likely to identify and provide contact information for people who the candidates believe will provide a positive report. Investigators try to have substantive conversations with at least twenty people before writing their investigator’s reports. In their conversations, and as they go over the candidate’s application materials, investigators are focusing on specific traits that are important for judges to possess: integrity, professionalism, diligence and punctuality, legal experience, knowledge and ability, temperament, diversity awareness, and health.
Each individual investigator can expect to put hours of work into each investigation. For example, when the candidate is a prosecutor, many of the opposing attorneys will likely be public defenders, who have a limited amount of time in their day to return phone calls. So a number of calls – many many more than 20 – are necessary before we can expect to have the 20 contacts necessary to fill out a report.
During the investigations, we frequently notice patterns. If people consistently comment that the candidate is sloppy, or turns in documents late, that is significant. If people consistently comment that a candidate is rude or demeaning, that can also be significant.
After the investigators do their investigation, they put together a report on the investigation, which is distributed to the evaluators who interview the candidate. The interviews are spaced out over several weeks due to the sheer number of candidates. Each candidate is interviewed for about 15 minutes. Each bar association strives to have several evaluators in the room participating in each interview (Decalogue officially attempts to have three or more per interview, and we usually hit that goal). One of the pieces I read recently suggests that if a candidate “has a bad day,” the candidate “can blow 10 or 12 evaluations at once” (its 11, which is neither 10 nor 12, but, I digress…).
This isn’t even close to correct. By the time the candidate is interviewed, the evaluators from the eleven Alliance bar associations have had the benefit of the hours of work put into the investigator’s report. The interview provides the evaluators with an important opportunity to ask questions of the candidate. But no bar association bases their rating solely on the interview. That would be as senseless as a potential employer basing an offer of employment solely on an interview without looking at a potential employee’s resume or qualifications.
One of the pieces I read bemoaned the fact that non-participants in the Alliance process are not recommended by Alliance member organizations. The piece argues that non-participants should be rated something like “did not participate,” which would not appear to be a substantive finding. This suggestion is, in the words of my first year Torts professor, Richard Wright, “wrong wrong wrong wrong wrong.” A candidate for judge who chooses not to participate in the Alliance process is unfit to be a judge.
Candidates for judge do not have political issues that they run on. They are not permitted to publicly take positions on issues that they could end up impacting in their rulings. So, unlike candidates for other offices, they can’t refer you to their platforms and ask you to vote for them based on those platforms. The appraisal of a judicial candidate by fellow attorneys is, therefore, one of the most valuable pieces of information for any potential voter to have when trying to determine who to vote for. When a judicial candidate says “I refuse to be evaluated by my peers,” they are expressing a form of contempt for the voters, and for the office that they seek. That kind of person is not recommended substantively. If they refuse to be being scrutinized by their colleagues, they shouldn’t be wearing a black robe.
The investigation and interview process is absolutely non-partisan. In most cases, I had no idea whether the people I interviewed were Democrats or Republicans. Evaluators also do not consider a candidate’s opponents when making their ratings (and, yet again, in almost every case in which I served on an interview panel, or conducted an investigation, I had no idea who the candidate’s opponents were). Each candidate is considered separately and independently. It is entirely possible that in a race with two candidates, both will be highly recommended by the same number of bar associations. There’s nothing wrong with that. Ratings are not endorsements. They are simply recommendations.
Injustice Watch pointed out that the ratings are sometimes disparate. Different bar associations rate different candidates differently. There shouldn’t be anything shocking about this: the affinity bar associations, with their individual members, bring different points of view to the table.
While the Alliance process pools the resources of the eleven bar associations (given how impossible this work would be otherwise), the ratings are done separately. Each bar association has its own evaluators; and there is no agreed-upon simple metric for judicial evaluations. I always caution voters to look at every Alliance bar association’s ratings in order to determine whether certain patterns emerge about a given candidate. For example, if a candidate is sitting in the grey area between being recommended or not recommended (some bar associations use the term qualified or not qualified), expect to see the candidate with some R ratings, and some NR ratings. If the candidate is solidly recommended, that is significant. If there are a handful of highly recommended ratings, that is also significant.
Expecting complete unanimity, though, is silly. Each bar association evaluates candidates separately. Each bar association has a different process for arriving at its ratings. The only one I can speak to specifically is the Decalogue Society of Lawyers’ process for evaluating candidates; and I can speak to it because, as a former chair of the Judicial Evaluations Committee, I’m one of the people who wrote the current guidelines (though, admittedly, most of the credit belongs to others).
In the case of the Decalogue Society of Lawyers, the Judicial Evaluations Committee’s ratings cannot be changed by DSL’s president, or by the board of managers. So anyone contacting the president of the Decalogue Society to complain about a judicial evaluation is wasting their time. In fact, the Decalogue Society once gave its own president a not recommended rating – that’s how independent JEC is from the rest of the society. We value, above all, our integrity. Our ratings, therefore, reflect our best attempt at an honest evaluation, and not political or other considerations.
A suggestion was made that Alliance bar members “shouldn’t pretend that there are any kind of real investigations.” This suggestion is nothing but slander. I would suggest that with respect to anyone who has been consistently not recommended, it is not because there “was no real investigation”, but rather because there absolutely was a real investigation, and the correct result was consistently achieved.
The Alliance process pools our collective resources together to give the each bar association a chance to offer ratings that are honest, apolitical and, in most cases, correct.