The Cook County Democratic Party has asked all candidates for office, including judges, to sign a partisan pledge, promising certain things to the party in exchange for the massively important official endorsement from the political machine in Illinois' Democrat-dominated largest county.
But political and legal observers, alike, say such pledges raise questions for judge candidates, in particular, who may ultimately damage their ability to be seen as impartial by the public.
The fact that the Cook County Democratic Party recently asked its prospective candidates, including judicial candidates, to agree to such a pledge is not new, said Dick Simpson, a political science professor at the University of Illinois Chicago and a former Chicago alderman.
“That’s the normal for the Chicago Democratic Party for 50 years,” Simpson said. “It’s not that the Republican Party doesn’t do the same things; I’m sure they do, but it hasn’t been as much of an issue. Republicans don’t generally run judicial candidates in Chicago.”
Cook County, for instance, has not a single Republican serving as a circuit judge, elected countywide.
But asking candidates, just before the party’s slating meeting, to physically sign a detailed two-page “potential candidate agreement, promise and pledge” is news, especially for judicial candidates who are sworn to uphold the Illinois' Code of Judicial Conduct – which has specific mandates for refraining from “inappropriate political activity," Simpson said.
“In [previous] elections, if someone in the slating community asked, ‘Will you endorse the entire slate?’ and you said yes or no, it was just verbal statement; it wasn’t binding,” Simpson said. “It might effect whether you were slated or not, but there was more degree of freedom in that.”
With a written agreement, however, a losing opponent in a judicial race could challenge the victorious candidate and argue the winner had taken an issue stand, Simpson said.
“It probably would require more [than the partisan pledge],” Simpson said. “I don’t remember a case of a judge being disqualified on issue stands.”
Technically, there are no laws that necessarily prevent a judge from signing a pledge to a party, said Jamelle Sharpe, professor of law at the University of Illinois College of Law.
But that doesn’t mean such a pledge couldn’t have an impact on judicial impartiality.
The Code of Judicial Conduct, itself, while demanding a judge not “publicly endorse or publicly oppose another candidate for public office,” does allow a judge to “identify himself or herself as a member of a political party” and “contribute to a political organization,” among other things.
The issue is that judges and courts are supposed to base their decisions on their independent understanding of the law and their independent understanding of the facts, Sharpe said.
“In order for judges to do that, and to provide the litigants who come before them with due process, there are certain things judges shouldn’t do or even be perceived as doing,” Sharpe said. “The problem with a pledge like that is it implicates the neutrality of the judge.”
The Cook County Record reached out to the office of Cook County Chief Judge Timothy Evans, the Illinois Judges Association and the National Center for State Courts to get their view on the questions surrounding the Cook County partisan pledges. All declined to comment on the issue.
A spokesperson for Evans responded with a one-sentence statement, saying: "This office is not involved with political campaigns."
Sharpe, however, said the very first part of the partisan pledge gives him pause. In that section, the signer is required to acknowledge that one of the “explicitly stated purposes” of the party is that it “advances the ideals and principles of the Democratic Party.”
“The whole tenor of the pledge is, don’t do anything to oppose the party,” Sharpe said. “That raises the issue of somebody who will stand for retention later on.
"Are they going to be thinking about what is in the party’s interests when judging a particular case? Even if it doesn’t technically violate any rule of judicial ethics or of due process, it has the potential to create this perception that it does.”
In 2020, the Democratic Party withdrew its official endorsement from Cook County Circuit Judge Michael Toomin, who was up for retention. Chicago progressives, led by Cook County Board President and County Democratic Party Chairman Toni Preckwinkle, targeted Toomin for defeat, saying Toomin, a judge highly regarded by all professional attorney organizations, needed to be removed because he had not supported progressives’ calls for extensive reform of the juvenile justice system. They said this had resulted in too many teens being jailed, rather than rehabilitated.
However, the campaign against Toomin ramped up after the judge embarrassed Cook County State's Attorney Kim Foxx in the case against actor Jussie Smollett, when he was initially charged with staging a fake hate crime. Toomin appointed a special prosecutor in the case, and allowed the special prosecutor to investigate Foxx's office's shocking decision to drop charges against Smollett.
Webb's report later revealed Foxx and her deputies had issued numerous false public statements about the case, and had referred the matter to the Illinois Attorney Registration and Disciplinary Commission for further investigation of potential professional ethics violations by Foxx and her team.
Sharpe noted judicial codes of ethics instruct judges to avoid even the appearance of impartiality or unfairness. The reason is simple: As a general matter, the federal and state constitutions contain no provisions requiring people who are not parties to an individual case to listen to anything the court has to say.
“All courts, they build good will in the public, and that good will leads to an expectation that everybody will follow the court’s interpretations of the law,” Sharpe said. “But that good will depends on the courts being fair, and as soon as the courts are perceived as not being fair, their power to command – their respect – erodes.”
“This is the reason that even the perception of bias impartiality can be problematic at any level, state or federal,” he added. “Public trust gives courts their power.”
Voters know judges are part of the political process, Sharpe said. But they don’t always understand to what extent a particular judge is rooted within a party.
“On the one hand, the fact of signing a pledge to a political party, while not necessarily prohibited, might lead to the perception that the judge is not as impartial as the public would prefer,” Sharpe said. “[On the other hand], this document brings those commitments out of the shadows and shows the real relationship between judge and party.”
In regard to the problematic ethics of a party pledge, Sharpe said such pledges also raise a foundational question concerning how judges are installed, altogether.
“The fundamental issue is whether judges should stand for election at all, or whether states should adopt something like the federal system, whereby it’s not completely apolitical, but judges are appointed as opposed to be elected,” he said.
Certainly, federal judicial candidates are not isolated from politics in an appointment-based system, Sharpe said. Presidents and senators look for candidates with a certain political profile because they need to plausibly predict how those judges are going to rule on controversial issues, Sharpe said.
But in an election – particularly in Chicago, when a bedsheet ballot can contain 40 to 50 candidate names – politics plays a much heavier role. To get on a party’s slate, regardless of what type of pledge it takes to get there, can give a candidate a hand in the game.
Simpson noted judge candidates, who are likely not household names, may seek any advantage they can get to win more votes.
Simpson noted judge candidates with Catholic-sounding names – particularly Irish names – tend to get more votes than a “Joe Smith candidate, a milquetoast candidate that you can’t tell the ethnicity or religion or other factor that might influence a ballot."
Instead, Simpson said, voters may “use cues like party identity or ethnic names or religious identity, looking for some sort of cue to how to vote.”
Simpson doesn’t see the Democratic Party’s pledge as the most important issue in Cook County politics today, though he does believe it needs to be worked out better.
“There will be a good bit of debate going forward about it,” Simpson said.
On Dec. 14, the Cook County Democratic Party released the list of those judicial candidates who had received the official party endorsement headed into the 2022 Primary Elections. These included:
For Appellate Judge: Dominique Ross and John Ehrlich.
For Circuit Judge: Howard Brookins, Araceli De La Cruz, Tom Donnelly, Ruth Gudino, Diana Lopez, Tom Nowinski, Yolanda Sayre, Rena Van Tine and Michael Weaver.
For Circuit Judge, Alternate: Tracie Porter, Marcia O’Brien Conway, Jennifer Callahan, Ashonta Rice, Pam Saindon, James Murphy Aguliu, Steven McKenzie, James Gleffe, Debjani Desai, Joanne Fehn and Tiffany Brooks.
The party's selection committee for Circuit Court was led by Illinois State Sen. President Don Harmon, of Oak Park, and Chicago Alderman Michelle Harris.
Jonathan Bilyk contributed to this report.