Michael Patrick Flanagan O'Reilly McMurphy Wins Retention!
January 15, 2007
In a landslide surely to shift the national landscape, Michael Patrick Flanagan O'Reilly McMurphy, whose real name is Mickey Murfabella, was retained on the Cook County bench. Didn't see that story? Maybe that one is still on the editor's floor, cut for lack of newsworthiness.
So another election has come and gone and, in a miracle, the voters have again retained 100 percent of our judiciary. Okay by you?
Many litigators don't think so. It's not to say that most, half, or even a significant percentage of judges are not qualified. They are. But there are some ...
I recall one judge who sat on the motion call years ago. Summary judgment motion after motion went before him and all we ever heard was, "It's a question of fact, counsel." In one of my defeats I had to ask, "Judge, what exactly is the question of fact?" He replied, "Counsel, counsel, it just is. It just is."
It took years to figure out what on earth another judge was thinking when she ruled. Litigators finally realized that she often sided with whoever spoke last. Thirty times an hour you'd hear a lawyer say, "One final word on the subject, if I may, your honor ... ."
Another just wouldn't read the briefs. She claimed to, but when the argument started she could often be heard saying, "Well that's an interesting point. Is that in here somewhere?"
There was one who noone wanted to try a case before. Both sides would take a change. He got so upset with this practice that within minutes of stepping into his chambers after the assignment he would say with a red face, "I know what you're going to do," and he would do anything to keep the case.
"Judge, we'd like to come back in an hour and present a motion."
"Oh, yeah? Motion to continue trial granted, and then we'll see about that motion of yours now that I've made a substantive ruling."
Some just keep continuing cases in the apparent hope that the lawyers will just die and go away.
Bottom line: most are qualified, some more than others. But some just don't belong on the bench.
So what can be done about it? The Chicago Bar Association Judicial Evaluation Committee puts in thousands of volunteer attorney hours in a comprehensive evaluation of judicial candidates. And the CBA guidelines for rating judges "have been adopted almost entirely by the American Bar Association as a model for local and state bar evaluation programs." (CBA Website)
There are some who must scratch their heads and wonder if it's all worth it. Because the thorough evaluation process we employ within our current system isn't producing the intended results, many practitioners believe it's time to change the system.
Supreme Court Justice Sandra Day O'Connor was one who would favor a change, noting the problems with campaigning and fundraising in elections for judges:
"Relying on campaign donations may leave judges feeling indebted to certain parties or interest groups ... . The mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary." Republican Party v. White, 536 U.S. 765, 122 S.Ct. 2528 (2002).
Only nine states have a partisan election for trial court judges. Of those, it appears that only three -- Illinois, Pennsylvania, and Tennessee -- subsequently have a retention election only. The other six have re-elections -- meaning another candidate has an opportunity to be selected. The Illinois Constitution requires that judicial performance be evaluated by the voters and that each judge seeking retention receive at least a 60 percent "yes" vote of those cast to remain in office.
Let's take the first part of that last sentence. Are voters actually evaluating judicial performance when they vote? Then again, it may be no different than their approach to voting on any other candidate. One person told me he voted for Blagojevich because he "didn't like the half-tilted plastic-headed Mad Magazine smile of Topinka." And many voters would prefer not having the right to select the judges.
While I was voting November 7, I overheard one woman say, "Oh, my God, how many of them are there? This just never ends." It sounded more like a rodent problem. Most voters are honest about it, believing that they know nothing about the candidates and don't feel they should be voting on them.
Interesting situation we have, then. There is agreement that there are unqualified judges, yet no judge has been voted out in over 15 years. There is agreement by many lawyers that our method by which we retain judges needs to be modified. There may well be agreement by a majority of voters for a change. So, why haven't we done it?
Maybe we can't agree on what system would be better. Some states have judges reappointed based upon a judicial selection commission. Some are reappointed by the governor subject to legislative confirmation (no politics there).
A judicial commission could at least give weight to the efforts of the bar associations in evaluating judges. There are usually only a few bad apples that do not deserve retention. The mere creation of such a commission could in and of itself be a deterrent to weak judicial performance.
One other problem that poses a greater threat is the possibility of excellent judges not being retained because of those who vote against all judges or an unpopular last name. Maybe a few bad apples in the judiciary isn't enough to kick-start a change. But the mere possibility that good judges could be tossed should be enough to warrant one.
Other options are methods such as the Missouri Plan. Under that plan, a judicial selection commission interviews candidates and recommends three persons to the governor. After one year on the bench, judges must then run at the next general election for retention. If a majority of voters disapproves of a judge, the judge is recalled and a new judge must be appointed.
In 1906, in response to an outcry about elected judiciaries, legal scholar and dean of Harvard Law School Roscoe Pound gave a speech to the ABA in which he claimed that "compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." (Reprinted in The Causes of Popular Dissatisfaction with the Administration of Justice, 8 Baylor L. Rev. 1, 23 (1956).)
Now that we've had 100 years to let it sink in, maybe it's time to change.
