Judge Charles E. Freeman rarely mentioned that he was black while campaigning for a seat on the Illinois Supreme Court 30 years ago. That doesn’t mean he viewed his ascent through a colorblind lens. A month before Freeman’s historic election victory, he opened up about the need for diversity on the state Supreme Court, whose justices were all white.
“It would cause a great segment of our population to look at the court with a great deal more respect and confidence in the fairness they’ll receive,” Freeman said in an October 1990 interview.
When Freeman retired last year, he was still the only African American ever elected to the state’s highest court.
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With the election for his seat next year, Cook County’s diverse voters will decide what racial representation looks like on the state Supreme Court, and whether it returns to an all-white bench as it was before 1990. Multiple people of color are running in the March Democratic primary, some who frame their racial identities as a crucial consideration for the only Illinois Supreme Court seat ever held by a nonwhite person.
“If large segments of the public feel that it is not being represented, they lose faith in the decision-making,” Cook County Bar Association president Jerrod Williams said. “That is crucial to the court because its only power comes from the people’s faith in its decision-making.”
Cook County’s demographics make it the most viable path to diversifying the court, with people of color comprising a majority of the electorate. Cook County voters elect three of the seven Illinois justices, given the county’s large population, while voters in the other four appellate districts across the state each select one. Outside Cook County, Illinois Supreme Court elections rarely feature people of color as candidates; this year Justice Lloyd A. Karmeier is retiring, and both declared candidates for his downstate seat are white.
Opportunities to increase diversity in the state Supreme Court are few and far between. Once elected in partisan contests, justices serve 10-year terms, at the end of which they stand for retention votes. No Illinois Supreme Court justice has ever lost a retention vote, and justices don’t have term limits.
In June 2018, the state Supreme Court temporarily appointed Justice P. Scott Neville Jr., who also is black, to fill Freeman’s seat until his term ends in December 2020. Neville, who is now running to permanently replace Freeman, contends that at least one African-American should sit on the court. “People question the credibility of the courts if they don’t see people who look like them,” Neville said in August, as the Cook County Democrats gathered and decided, after hearing from the potential candidates, to slate Neville.
Despite his incumbent status and the county Democratic endorsement, Neville faces a competitive road to winning the First District election and becoming the second black man elected to the state Supreme Court.
Moreover, he’s not the only candidate looking to make history. Appellate Court Justice Cynthia Y. Cobbs, a black woman, would be the court’s first woman of color. Another candidate, Appellate Court Justice Jesse Reyes, would be the court’s first Latino justice. Reyes, who is Mexican-American, is already the first Latino judge elected to the Illinois appellate court.
“I truly believe we’ll have diversity when we put a Latino on the highest bench,” former Cook County Democratic Party Chairman Joe Berrios told party leaders at the August slating.
Another black man, Appellate Court Justice Nathaniel R. Howse, has garnered support from various elected officials, including popular Secretary of State Jesse White, and appeared to be Neville’s stiffest competition as the party chose its candidate. Four white candidates are also in the mix, three of whom are Jewish.
John Marshall Law School professor Samuel V. Jones warned that a Supreme Court without a single person of color would hurt justices’ ability to examine their own bias, implicit or otherwise.
“For us to move toward an all-white Supreme Court would be devastating,” Jones said.
Importance of Judicial Diversity
Research supports the idea that Freeman expressed long ago, that a diverse judiciary improves the court’s standing among people of color.
A 2010 study found that African Americans see the federal courts as more legitimate with more black judges on the bench. Another study, from 2012, explored the influence of racial diversity in appellate courts, finding that adding even one black judge to a three-judge panel drastically increased the chances that the panel voted in favor of affirmative action programs.
Representation on the bench is especially important in an increasingly diverse America, where the justice system disproportionately affects black and Latino people.
A majority of Americans, including 68 percent of African Americans, believe that too many judges in state courts don’t understand the challenges facing people who appear in their courtrooms, according to a 2018 survey by the National Center for State Courts.
State Supreme Court elections often fly under the radar, but the stakes are high.
The court can overturn appellate decisions and usually has the final say on interpreting state law, setting binding precedents for lower courts to follow. Justices can implement reforms and changes of procedure across state courts, and appoint judges to fill vacancies, creating or erasing diversity across a predominantly white male judiciary.
“It’s really important that people trust that those judges, when they’re hearing these cases, [are] going to understand the life experiences of the people affected by their ruling,” said Alicia Bannon, managing director of the Brennan Center for Justice’s Democracy program.
Barriers to the Bench
People of color face structural inequities and a legacy of racial discrimination known to stifle the flow of diversity into the judiciary, especially at the top. As of May, 24 states had all-white Supreme Courts.
Nationally, people of color are much more likely to be appointed than elected to state Supreme Courts. Between 1960 and 2018, only 4 percent of all justices initially elected were people of color, compared to 12 percent of all those initially appointed, according to the Brennan Center for Justice. Elections are one way that state Supreme Courts tend to lose diversity, when appointed justices like Neville defend their seats.
A big part of the issue is fundraising for what are increasingly high-cost races, Bannon said.
“There are in many instances racial disparities in the ability to tap into the million-dollar network required to compete in Supreme Court elections,” she said.
So far, two of the white candidates in the Supreme Court race have raised more money than any candidates of color.
As of the end of September, Appellate Court Justice Margaret S. McBride has $307,000 available, the most of any candidate and more than twice that of incumbent Neville, who reported $151,000, according to the Illinois State Board of Elections. Attorney Daniel Epstein, who is competing against challengers with decades more experience than him, has $280,000.
Much more money is likely to come into the race as the March 17 Democratic primary approaches.
Spending by outside interest groups, who target candidates with positive or negative advertising, often splits along racial lines. From 2004 to 2016, outside groups spent far more on average on negative ads against candidates of color than white candidates, and slightly more on positive ads for white candidates, according to a Brennan Center study.
Some states and cities have adopted public financing of campaigns to reduce the influence of wealthy donors and special interest groups in elections while leveling the playing field for grassroots candidates, people of color and other marginalized groups.
The Illinois Reform Commission recommended launching a pilot program for public financing of judicial elections in 2009 to combat the influence of big money in politics, following election cycles “with never-before seen expenditures in judicial races.” But the program never got off the ground.
Race and Cook County Voters
Illinois’ method of choosing state justices — via district elections rather than statewide contests — helps improve the chances that people of color win a spot on the state Supreme Court. However, while the rest of Illinois is relatively whiter and more conservative, Cook County’s diversity and liberal leanings aren’t a panacea against voter bias and racial polarization.
Typically, race and party are two of the biggest influences on Cook County voters at the ballot box, DePaul University political science professor Christina Rivers said.
“The running joke is, you just vote for all the Democrats or you look for all the Irish names, or the Polish names,” Rivers said. “People joke about it all the time. I don’t think it’s that much of a joke.”
When it comes to the judicial section of Cook County ballots, where voters face an often-overwhelming amount of choices and might have little if any information about the candidates’ records, research shows many voters seek out identifiably ethnic names as a proxy for a common political and philosophical ideology. Historically, some Cook County judicial candidates have changed their names to sound Irish.
According to a 2011 study of Cook County judicial elections, Irish women have a particular edge with voters. Appellate Judge Margaret McBride, checks both those boxes.
With four candidates of color in the race, there has been some concern in political circles about splitting the nonwhite vote. Reyes has a Spanish surname, which might appeal to some Latino voters. But judicial campaign consultant Frank Calabrese, noting that three black candidates are running, said that African-American voters typically participate in elections at a much higher percentage than Hispanic voters do.
However, the former president of the Hispanic Lawyers Association of Illinois, Juan Morado Jr., warned against characterizing the election as “a battle of any particular racial group against each other.”
“I think it’s about having the best candidate win the seat,” he said. “We are fortunate to have multiple candidates of color vying for the seat. It’s an amazing time to be alive.”
Supreme Court candidate Howse said he wasn’t concerned about racially polarized voting, pointing out that in the crowded Chicago mayoral race, the two top candidates were people of color.
“Cook County voters don’t strictly vote along racial lines,” he said.
Ultimately, the decision rests in the hands of the more than one million Cook County voters who are expected to vote in the March 17 Democratic primary. The general election is Nov. 3, 2020. There were no Republican candidates on the ballot as of the end of November. There are no polls to gauge which candidate might be ahead, but Calabrese said he does not see a clear front-runner.
Ami Gandhi, director of voting rights and civic empowerment at the Chicago Lawyers’ Committee for Civil Rights, said that Cook County voters in communities of color are eager to make informed decisions about the judicial system.
Perhaps even more than race, Gandhi said voters care about accountability and impact in their communities.
“They are looking for candidates and elected officials who will address their concerns at a community-wide level,” she said.
Correction: An earlier version of this article erroneously attributed a quote about the importance of electing a Latino Illinois Supreme Court justice to Judge Jesse G. Reyes. The statement was actually made by former Cook County Democratic Party Chairman Joe Berrios. The article has been updated with the correct attribution. We apologize for the mistake.