Defeated judges find way back to bench

lllinois Supreme Court Justice Mary Jane Theis and Chief Justice Thomas
Kilbride earlier this month. (Chris Walker/Chicago Tribune)

The Illinois Supreme Court in the past year kept seven politically connected judges on the Cook County bench after they were rejected by voters, a common practice the high court had pledged to curtail.

One had given more than $20,000 to the Cook County Democratic Party. Two had connections to Illinois House Speaker Michael Madigan. Others have ties to powerful Chicago Democrats who decide who gets the party's support to be judge.

They weren't the only active Democrats chosen for Circuit Court duty by the high court's three justices from Chicago, all who are Democrats themselves. A Tribune review also found the court reappointed three judges who dropped out of judicial races, making room for the Democratic Party's favored candidate.

Supreme Court spokesman Joseph Tybor said the appointment of judges who lost elections was "not a black and white issue."

"The appointment of qualified candidates who already have some experience as a judge — even though they may have lost a primary election — can be a useful way to replenish the bench with proven judicial talent until the voters have another chance to choose in the next election," Tybor said.

Critics have said the court's penchant for keeping non-elected judges on the bench lacks openness and could circumvent the will of voters.

The majority of the state's judiciary — from circuit judges to the seven Supreme Court justices — are elected. But the constitution gives the high court broad appointment power in its role as supervisor of the state's court system.

For years, the Supreme Court has kept judges on the bench after they lost elections, citing its power under the Illinois Constitution to bring back "retired" judges whenever it determines there is a public need — a practice known as "recall." The Chicago Council of Lawyers threatened to sue the Supreme Court in 1993 for the practice, and the court pledged to stop. But it didn't.

Last year the Tribune revealed the court had recalled to the bench 18 judges who lost elections since 2000 — many of them active Democrats. In response to that story, the Supreme Court said it had recently decided to stop recalling losing judges and provided a June 2011 letter from Chief Justice Thomas Kilbride.

"In short, our court has determined as a matter of administrative policy that non-elected circuit and appellate court judges shall not be considered for recall," Kilbride wrote.

But the latest Tribune review found the court continued to keep politically connected judges on the bench after election losses by appointing them to specific vacancies — including two judges who were previous beneficiaries of the court's recall practice.

Tybor said Kilbride's letter did not mean the court would not reappoint judges who lose elections — only that they would not be brought back under the recall procedure.

"Keep in mind, however, while the end result may be the same (they are still on the bench) the court did not go back on the policy it had announced last year," Tybor said in an email.

David Morrison, deputy director of the Illinois Campaign for Political Reform, said the Supreme Court should be more transparent in how it fills coveted spots on the bench.

"The Supreme Court should be less of a black box so you have an idea how they decide who should be a judge," Morrison said. "Certainly, party affiliation and political donations should not be a factor. The point should be to find the most qualified and skilled lawyers to be on the bench."

How the Supreme Court decides whom to appoint remains a mystery. Those chosen often have a common qualification on their resumes — ties to powerful Democratic politicians.

In Cook County, the process typically goes like this: The Supreme Court appoints a lawyer to the bench, the new judge later runs for election and loses, and the court then reappoints the losing judge to the bench at the same salary and benefits.

That's how it played out for Alfred M. Swanson Jr., a former radio news reporter, veteran lawyer and faithful Democrat.

For years, Swanson wanted to be a judge. He ran for an associate judgeship in 2007, a process where judges are chosen not by voters but by full Circuit Court judges in a secret ballot. Swanson ran with the blessing of Speaker Madigan who wrote a letter endorsing him.