06/24/2011 04:04 pm ET | Updated Aug 24, 2011

A Call for Transparency: Illinois Judicial Vacancies Should Be Made Public

When an Illinois judge quits or retires before the end of her term, Article VI, Section 12 of the Illinois Constitution allows the Illinois Supreme Court to select her replacement. This process happens behind closed doors --the vacancy is not announced publicly and there is no public notice period. Once appointed, these interim judges stand a greater than 70% chance of election. Astonishingly, more than one-third of current Illinois judges were originally Supreme Court appointees, making interim appointment a de facto path to a lifetime on the bench.

Illinois alone empowers its Supreme Court with absolute authority to fill judicial vacancies. Most states incorporate a formalized recommendation component into their vacancy-filling process. Typically, a nominating commission recommends a list of candidates, from which the governor selects an interim judge. Given that Illinois grants one nominating body sole discretion over these appointments, transparency is especially important.

A closed process gives the appearance of impropriety, where there may in fact be none. By not openly soliciting qualified applicants, the process also precludes countless potential appointees from candidacy. In turn, the public is prevented from evaluating and recommending candidates under consideration for this powerful public position.

Our state's system of selecting judges through public election is sometimes defended as a way to prevent cronyism. Ostensibly, it does so by empowering voters, as opposed to political figures, to appoint judges.  Public elections are indeed open to all qualified candidates, and thus elections arguably may attract a larger pool of candidates. The Chicago Council of Lawyers has been skeptical of whether, in practice, our state's elective system lives up to its noble aims of giving the public a greater say in who dons the judicial robe. But we are reasonably certain that a closed system of filling judicial vacancies, whereby a third of our state's judges win a near-permanent judgeship without public notice or involvement, falls far short of the elective system's aims.

As an alternative to the current process, the AOIC ought to post judicial vacancies as they arise, promptly and publicly. The AOIC should widely disseminate the notice of vacancy and a description of the position. This will provide every interested and qualified candidate access to the judiciary.

The notice of vacancy should be publicized widely to ensure that as many potential candidates are notified as possible. Widespread publication will guard against cronyism and promote diversity by opening the process to a larger number of candidates from a broad set of backgrounds.

This is not a call for a constitutional amendment, or adoption of a merit selection system -- though cases for both can be made. This is a minor procedural step aimed at protecting the judicial electoral system. Transparency -- a simple, straightforward improvement -- has the potential to greatly improve our judiciary.

Chicago Appleseed Fund for Justice
Chicago Council of Lawyers