Is there a better way to evaluate retention judges?

Five people stand in a courtroom in front of a judge with clipboards, conducting a judicial evaluation

With another election fast approaching, Rebel Nes, an Illinois resident, recalled in a recent interview how challenging she found it in past election cycles to make an informed vote on the many judges running for retention.

“It was frustrating because I was craving information, and I couldn’t find it,” said Nes, who works as a health care consultant.

Investigations that expose, influence and inform. Emailed directly to you.

In Cook County, 13 bar associations — professional organizations for lawyers — have long attempted to help voters on these down-ballot contests by rating each judicial candidate as qualified or not. But critics, including Nes, say the evaluations fall short, noting how few judges over the years have received negative ratings, let alone get bounced from the bench by voters.

Out of the 61 judges up for retention in Cook County in the Nov. 8 elections, for instance, all but four were recommended for another term by all the bar associations. Two of those candidates received positive reviews from all but one bar group.

It’s even rarer for voters to remove a judge from office. Each judge has to garner at least 60% of the vote to stay on the bench. In 2018, Matthew Coghlan became the first Cook County circuit court judge to lose a retention race in 28 years, in part because of his alleged role as an assistant state’s attorney in wrongful convictions tied to disgraced former police detective Reynaldo Guevara, as well as his comparatively lenient sentences as a judge for police officers accused of crimes. Yet the Chicago Council of Lawyers was the only one of the three major bar associations to give Coghlan a negative rating.

Brendan Shiller, a Chicago attorney who helped lead the effort to unseat Coghlan, said bar associations often simply rubber-stamp judges up for retention unless they’ve been hit by a scandal.

“It’s just assumed within the industry that if a judge is already on the bench, then they’re qualified to be on the bench,” Shiller told Injustice Watch.

Others critical of how judges are elected or retained in Illinois say the evaluations ignore the voice of the larger community and have an inherent conflict of interest by relying on primarily lawyers’ opinions.

“The people who are assessing the judges, their interests may not necessarily align with the public that the judge is supposed to be serving,” Nes said. She wants to see an evaluation process that takes into account the perspectives of people who are most impacted by the court system. “The composition of attorneys is still mostly white and male,” she noted, while “the people who go in front of judges are not predominantly white and male.”

Those involved in the bar associations’ evaluation process say the lawyers’ groups are being asked to do too much with too few resources. Other states, such as Colorado, have public commissions comprising lawyers and nonlawyers who evaluate judges’ performance.

But creating publicly funded evaluation committees would likely require an appropriation from the state Legislature or a change to Illinois’ constitution. And Illinois has historically been resistant to changing the way that judges are evaluated and selected, potentially dooming efforts to improve the ratings process.

Limitations of bar association ratings

For primary and general elections, lawyers with the 13 bar associations — ranging from powerhouses such as the Illinois State Bar Association to lesser-known ones such as the Hellenic Bar Association of Illinois — ask judicial candidates to complete extensive written questionnaires detailing their career backgrounds, courtroom and work experience, and ethical issues that may have arisen in their past. Investigators then interview lawyers and judges who have worked with them, including opposing counsel from trials or cases. Many of the bar associations then join together to question the judicial candidate in an interview that might take up to an hour.

At that point, the bar associations decide whether a judge is qualified to continue to serve or whether a candidate will be recommended for the bench. Candidates who are found not qualified have the opportunity to appeal their rating.

Most of the bar associations issue only their rating — a proverbial thumbs-up or thumbs-down. For next week’s election, just the Chicago Council of Lawyers and the Illinois State Bar Association published write-ups giving voters more details on judges’ backgrounds and performance.

Malcolm Rich, executive director of the Chicago Council of Lawyers, said voters sometimes ask for more extensive research, including data on court management, results from court watching, and comments from people who have appeared before the judge. But he said the bar associations’ efforts are hindered by time and money.

“Bar association evaluations are a volunteer effort that have to be conducted in a relatively short period of time,” Rich told Injustice Watch leading up to the last general election.

In a recent interview, Rich acknowledged that bar associations should move beyond just relying on lawyers for input in coming up with their ratings on judicial candidates.

“Community feedback really should be a bigger part of the evaluation process,” he said.

As part of its most recent evaluation efforts for the upcoming election, the Chicago Council of Lawyers sent surveys to community organizations, and Rich said he would like to see deeper connections between the bar associations and community groups.

“Not necessarily just to get community outreach to say should this person be retained or not retained but seeking community input on what are the problems with a particular judge or a particular division of the circuit court,” he said.

Jen Dean, co-executive director of Chicago Votes, an organization focused on engaging young people in the political process, thinks that those who have been involved in the criminal justice system — and know what it’s like to be at the mercy of a judge — should also have a voice in the process.

“We need to have people who are directly impacted leading that work and making sure that their stories are getting told,” she said.

The Illinois Alliance for Reentry and Justice, a coalition of advocates and organizations working to remake the criminal legal system, publishes a voter guide — with the help of former incarcerated people and others impacted by the court system as survey scorers. But most judicial candidates did not respond to the organization’s questionnaire.

Avalon Betts-Gaston, the organization’s project manager, said bar association ratings of judicial candidates are compromised by an inherent conflict of interest — lawyers holding back criticism of judges who they might later have to appear before, even if the feedback to the bar groups is anonymous.

“We think that bar associations are limited in how far they can go, in how far they can push the judiciary for that reason,” she said. “Because at the end of the day, they will have to stand in front of a judge and represent a client.”

While Rich acknowledged the limitations of bar association ratings, he said he strongly thinks that they give voters a solid starting point for deciding whether a judge should be retained in office.

The Colorado solution: Judicial performance commissions

While almost 20 states, including New Mexico, Missouri, Utah, and Alaska, use what’s called a performance commission model of judicial evaluation, Colorado has won a reputation as a model of how best to evaluate the performance of judges.

Kent Wagner runs the Colorado Office of Judicial Performance Evaluation, a state office overseeing about 230 volunteers who evaluate judges, write up their conclusions, and recommend whether a judge meets a specified set of performance standards.

Wagner said most people don’t know a lot about the judges running for retention. “We give them enough to have some sense of whether somebody thinks that the judge is doing a good job,” he said.

The write-ups and recommendations are posted online and mailed to every registered voter household in the state’s Blue Book, a ballot information booklet.

Twenty-two district commissions spread throughout Colorado evaluate county and district court judges, while a separate state commission evaluates judges on the appellate courts and state supreme court.

An advantage of Colorado’s system, Wagner said, is that nonlawyers who are engaged in their communities have a slight majority on the district and statewide commissions.

“People like to know local folks are actually evaluating local judges,” Wagner said.

The commissioners interview each judge seeking retention in their district. Surveys are sent to a long list of people who’ve interacted with judges — everyone from attorneys and jurors to litigants, law enforcement officers, local social service providers, and victims of crime — asking about the judge’s integrity, legal knowledge, and communication skills.

The commissioners also review the judge’s written decisions and observe them at work, watching for their tone of voice, neutrality, respect, and use of plain, understandable language.

In interviews with the judges, the commissions discuss their findings and ask them to address issues raised in the evaluations.

Critics of the Colorado model say there’s not enough transparency in the process and note that the commissions still find that most judges meet performance standards. For this year’s election, all 135 judges up for retention across the state were found qualified.

However, judges who receive unfavorable ratings tend to receive fewer “yes” votes, even if they ultimately win reelection.

From 1990 to 2016, 99% of the Colorado judges who received positive recommendations kept their seats, while only 64% of judges with negative ratings stayed on the bench, according to a state report.

Reform efforts in Illinois have been stymied

Colorado and many of the states that have adopted public commissions to evaluate judges differ from Illinois in another key way — by appointing, not electing, judges.

More than a half-century ago, Colorado voters passed a constitutional amendment to abolish partisan judicial elections and instead appoint judges based on merit.

Since 1966, when a vacancy happens in state court, the governor appoints a judge from a list of two or three candidates recommended by nominating commissions. Then after an initial two-year trial period — and at the end of each subsequent term — voters decide whether a judge should be retained.

Merit selection combined with retention elections is meant to hedge against the influence of partisan politics while maintaining public accountability. But a 2016 report from the Brennan Center for Justice at the New York University School of Law, a nonpartisan think tank, notes that this system has issues, too: Merit selection commissions can still be “captured” by special interests, and retention elections have become increasingly politicized and costly.

While advocates have called for merit selection of judges in Illinois in the past, the political powers that control judicial slate-making have successfully blocked chances of that happening.

Unlike Colorado, Illinois voters rejected an amendment to the state’s constitution in 1970 to create judicial nominating commissions that would have recommended candidates for appointment to the bench by the governor.

In 2013, Illinois State Rep. Kelly Cassidy, a Democrat from Chicago’s North Side, sponsored a bill that would have moved Illinois to merit selection of judges and created a public commission to evaluate judicial performance. Under her proposal, judges who were found qualified would have automatically received another term, while those who were found not qualified would have faced a public retention vote.

In an interview, Cassidy said the bill failed to gain traction, citing opposition from Cook County Democratic Party leaders and concerns among bar associations of lawyers from underrepresented groups about its potential to harm diversity on the bench.

Rich said he very much doubts that a politically appointed performance commission would fly in a state such as Illinois where judges are elected.

More than a decade ago, Chicago Appleseed Center for Fair Courts, a nonprofit that is also led by Rich, undertook a pilot project launching a commission to conduct rigorous, research-based evaluations of judicial performance.

Nine attorneys and eight nonlawyers evaluated judges up for retention in Cook County in the 2010 and 2012 elections. Using court data identifying attorneys who had filed appearances in the previous three years before the dozens of judges up for retention, Chicago Appleseed sent surveys to as many of those attorneys as possible and conducted telephone interviews with a smaller sample.

The survey asked about judges’ legal ability, courtroom management, diligence, integrity, temperament, fairness, and independence. The results were made public and shared with judges, their supervising judges, and Cook County’s chief judge — as well as with bar associations for use in their evaluations.

While Chicago Appleseed concluded that the pilot project demonstrated the value of these more robust public judicial evaluations, it was discontinued in 2014 because of a lack of outside funding.

“Frankly, grant-makers see it as purely political, which we don’t,” said Elizabeth Monkus, a policy analyst and attorney at Chicago Appleseed who managed the project. “We have not been able to (financially) support the project, which takes considerable staff time.”

The best way to select judges is still hotly debated. But Monkus said she thinks that robust, performance-based judicial evaluations — aimed as much at continued training, education, and professional growth for judges as they are at voter education — are critical for a better judiciary.

Investigations that expose, influence and inform. Emailed directly to you.