It's time we took steps to inspire confidence in our justice system by implementing commonsense rules on recusal that are fair to all concerned.
In 1987, the ISBA Assembly passed a resolution adopting recommendations for a comprehensive plan for the "merit" selection of judges in Illinois. Though the Association had previously advocated these sorts of reforms, this resolution was a strong and detailed statement - in the midst of the Greylord scandal - that members of our profession and the largest organization of Illinois lawyers took seriously the need to restore the public's confidence in the integrity and impartiality of our courts and judges. Merit selection alone would not do this, but our Association concluded - and it is ISBA policy to this day -- that, with appropriate safeguards, it would be a step in the right direction.
Rising spending on judicial elections
For the selection of judges on our circuit, appellate, and supreme courts, Illinois has yet to take this step and, regrettably, our courts continue to be threatened by the role of politics in judicial elections. Moreover, in our state, and on a national level, special interest spending is increasing, raising concern about bias in favor of those who contribute.
In 2003, the ABA Commission on the 21st Century Judiciary stated that "[t]he judicial systems of the United States at the beginning of the 21st Century remain unparalleled in their capacity to deliver fair and impartial justice, but these systems are in great jeopardy....Increased political involvement in the judiciary, diminished public trust and confidence in the justice system, and uncertain resources supporting the courts place burdens on the judiciary's capacity to provide fair and impartial justice." This was well before the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, which held that the First Amendment prohibits the government from placing limits on independent spending for political purposes by corporations and unions. Thus, there is even greater cause for concern today.
Even without merit selection, there are things we can do to inspire confidence in our justice system. In 2011, the American Bar Association House of Delegates adopted a resolution urging states to establish clearly articulated procedures for judicial disqualification, including mechanisms for speedy review. This resolution also urged - for states in which judges are subject to elections of any kind - the adoption of (A) disclosure requirements for litigants and lawyers who have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing, and (B) guidelines for judges concerning disclosure and disqualification obligations regarding campaign contributions.
A 'sensible rule on recusal'
While the ABA continues to consider appropriate modifications to the Model Code of Professional Conduct, I have appointed a special committee to look at this issue. It is co-chaired by retired first district Justice Gino L. DiVito (who also chaired the ISBA's Special Committee on Merit Selection in 1986/87) and the current chair of the ISBA/IJA/CBA Judicial Ethics Committee, Warren Lupel (see this month's cover story for more).
Their committee has been tasked with (A) considering judicial disqualification standards in Illinois and, in particular, the interrelationship between 735 ILCS 5/2-1001(a)(3), Supreme Court Rule 63 (3)(C), the U.S. Supreme Court case of Caperton v. A.T. Massey Coal Co., Inc., and our supreme court's recent decision in In re Marriage of John O'Brien; (B) evaluating how to clarify and improve such standards and related procedures in a manner that enhances public confidence in our judicial system; and (C) reporting its findings and recommendations.
There are precedents for the types of reform we should consider in Illinois. A number of states have recently adopted rules that address campaign contributions in judicial races. These rules prohibit judges from hearing cases involving campaign supporters in which "the judge's impartiality might reasonably be questioned." They apply to both direct contributions and independent expenditures favoring a judge's election. Other reforms have been more procedural in nature, and are designed to ensure adequate due process.
As The New York Times editorialized earlier this year, "[a] sensible rule on recusal would significantly increase public confidence in judicial integrity." It is the ultimate goal of our special committee, and the ISBA as a whole, to do just that.