This summer, history was made again at the Illinois Supreme Court.
In July, the state’s high court welcomed its newest member, Justice Lisa Holder White. The downstate Republican, who had served since 2013 on Illinois’ Fourth District Appellate Court in Springfield, became the first Black woman to secure a seat on the state Supreme Court.
Holder White was no stranger to blazing trails, serving as the first Black judge in both the state’s Sixth Judicial Circuit and the Fourth District court. At her swearing-in ceremony, a large group of jurists and other admirers from throughout the state gathered, as speakers praised Holder White for her keen legal acumen, steady judicial temperament and fairness, and her strong commitment to justice. Among those lauding the new incoming justice was former Justice Rita B. Garman.
From left, former Lake County Sherif0f Mark Curran, a Republican, and Lake County Judge Elizabeth Rochford, a Democrat, will face off in the state's Second Judicial District this fall, with potential control of the Illinois Supreme Court at stake.
| Curranforcourt.com; https://www.facebook.com/JudgeRochford/
Garman said her replacement would make a superb addition to the state high court, and noted she had long taken an admiring interest in Holder White's judicial career, from Holder White's earliest days as an associate judge in the Macon County Courthouse in Decatur.
However, while Holder White's selection to the high court is historic, the way she became the high court’s latest member is a well-worn tradition in the state, a tradition that leaves Illinois’ high court standing alone among high courts in the U.S.
Like most of the other current members of the state high court, Holder White was not elected to the state Supreme Court, as the state constitution may otherwise require. Rather, she was appointed to replace Garman, who retired after decades on the bench.
And perhaps more precisely, in keeping with a tradition largely unique to the Illinois Supreme Court, Garman appears to have all but personally selected Holder White as her replacement.
Like a handful of states, Illinois holds a partisan election for first full terms, and justices serve a 10-year term. Justices are selected from five districts: Three justices come from the state's First Judicial District, which is limited to Cook County. Voters in each of the remaining four districts then select one justice each.
Additional terms on the court then require voter approval through an unopposed yes/no retention vote.
However, while other states allow voters to select their supreme court justices, when it comes to filling interim vacancies on the bench – such as when a justice retires before the end of his or her 10-year term – Illinois stands alone on its replacement method.
According to the Brennen Center for Justice, Illinois is the only state that has a Supreme Court appointment system to fill an interim court vacancy, said Joe Tabor, senior policy analyst at the Illinois Policy Institute.
Essentially, it allows justices to choose their own replacement – with confirmation from the rest of the court – to serve out the rest of their term before the replacement must face a competitive election.
Currently, six of the seven justices now serving on the court were initially appointed, said John Lupton, executive director of the Illinois Supreme Court Historic Preservation Commission.
Justice David K. Overstreet, who was elected in 2020, is the only non-appointed justice currently serving. Three appointees subsequently ran for election and won, including current Chief Justice Anne M. Burke; Justice P. Scott Neville, Jr.; and Justice Mary Jane Theis.
Of the remaining judges, Justice Michael J. Burke is up for election this year, after being appointed to replace Justice Robert Thomas in March 2020. Justice Holder White will be up for election in 2024.
Justice Robert L. Carter is not running for election. He was appointed by the Supreme Court after former Justice Thomas Kilbride, who won a seat in 2000, was denied retention by voters, failing to reach the 60 percent threshold of approval.
This fall, Illinois voters will have a rare opportunity. They will elect not one, but two members of the Illinois Supreme Court, as voters from the state’s new Second and Third judicial districts select justices.
And the stakes are high. Should Republicans win those two seats, they would gain control of the state Supreme Court for the first time since the current state constitution was ratified in 1970.
Republicans have never held a majority on the Court since the current state constitution was ratified in 1970.
Carter’s open seat – in a newly redrawn Third Judicial District – will be a contest between Republican Justice Michael Burke and Democrat Mary K. O’Brien in November.
Justice Michael Burke’s former seat, in the newly redrawn Second District, will be a battle between Lake County Associate Judge Elizabeth “Liz” Rochford, who won the Democratic primary in June, and former Lake County Sheriff Mark Curran, who narrowly won the Republican nomination.
Such an unprecedented shift in partisan control could have a huge impact on future rulings. Democrats, who hold a supermajority in the General Assembly, recognized the potential impact of such a partisan shift in 2021, when they moved to redraw the state's judicial districts after Kilbride's defeat. Observers said the redistricting could allow Democrats to hold or even increase their partisan advantage of the court, depending on the mood of voters.
Those partisan concerns, however, mean the retire-and-replace methods of filling Supreme Court seats – and possibly preserving political majorities – could be even more significant.
“If you come from the point of view that it’s good for the court to reflect the democratic choice of the voters, and the voters should decide judicial ideology, that power [to select a replacement] could be concerning, anti-democratic,” said Thomas Berry, a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review.
“If you think selections should not really look at ideology first and foremost, then that aspect of it wouldn’t be concerning. You would ask, ‘Is this a qualifying person who will reflect that district well?’ but not necessarily, ‘Is this a person who will win a competitive election in that district?’
“It’s a very interesting issue.”
A lone island
On the surface, Illinois’ unique appointment system may not seem to be a huge cause for concern, especially when noting the fact that the General Assembly has the power to change the process whenever it wants – and has simply chosen not to.
“The appointment of vacancies by the Supreme Court is actually a default option in the [Illinois] Constitution,” Tabor said. “If we wanted to change the system, the General Assembly could pass a law, the governor could sign it … The authority is granted in the General Assembly; the Supreme Court is the fallback option … .
“I do think it’s interesting – it’s notable – that the General Assembly hasn’t passed a law on how to fill vacancies,” he added. “They’ve been content to let the Supreme Court do it. Should the General Assembly take charge of the issue? We don’t have a position on whether it should change or not. It’s just … important to note that they can change it if they want to.”
Lupton said Illinois leaders have discussed how to best place people on the Supreme Court in Illinois for roughly 50 years.
In 1964, Illinois passed an amendment that completely replaced the judicial article of the state’s third constitution, which had stood in place since 1870.
“That’s when we brought in the idea of having five districts...," Lupton said.
“I think we’re the only state that has geographic representation on our court. I think that’s significant because it recognizes the difference between Chicago, Cook County and the rest of the state. Illinois is not unique in that we have a giant urban center and rural rest of the state, but [the geographic districting] is a significant distinction we have among the states.”
Yet since the 1940s, when merit selection – a system known as the Missouri Plan – was first adopted by Missouri, many Illinoisians have wondered if their process was the best option.
“One of the referenda items for the adoption of [the] 1970 constitution left it to the people to decide whether we would continue to have an elective judiciary (as we have since 1848), or to adopt Merit Selection (aka the Missouri Plan), which creates a commission to select a number of qualified candidates, and the governor selects from that group,” Lupton said. “This referendum was the culmination of a movement in the 1960s to move away from judicial elections, and there was another movement in 1980s to do the same.”
On a separate ballot in 1970, the vote between the direct election system Illinois has now and the Missouri Plan was close: 52-48 in favor of judicial elections, Lupton said.
Since 1964, there have been 37 Illinois Supreme Court justices, Lupton said. Ten of them were appointed; 23 were elected; 4 were appointed and then elected.
The 1964 amendment also changed term lengths from nine years to 10 years. But most notably, it switched the way judges remained on the bench:
Before 1964, judges were elected in contested races for each new term. The new amendment only required retention races after a first full term.
The 1970 Constitution adopted the 1964 amendment nearly in its entirety, with one slight change: retention votes increased to a 60 percent threshold of approval, instead of the original 40 percent.
In most states, the governor appoints vacancies on the state Supreme Court, Tabor said. The Brennen Center for Justice shows 46 of 50 states use a gubernatorial appointment system.
Often, a judicial nominating commission evaluates candidates and passes on a list from which the governor chooses, Tabor said. These commissions can vary in makeup, but often they’re comprised of lawyers.
The singularity in Illinois’ replacement method is a cause for concern, said Berry.
“When a state is an outlier, 1 out of 50, it does make me skeptical,” Berry said. “The states are laboratories of democracy. It’s a good thing each state gets to experiment with things. But that experimentation goes both ways. It’s fine for a state to try something new, but if no other state follows them or moves in that direction, that could be a sign that it’s not [the best model]. “
In an article Berry published July 19, “How to Stop Judges from Picking Their Replacements,” Berry picked apart the practice of strategic retirement by federal judges, by which some justices have delayed a retirement out of dissatisfaction with the person chosen as their replacement, while others have noted they could be “persuaded” to retire if a certain nominee would be made their successor.
“… The prospect of judges influencing the selection process for their successors raises serious concerns,” Berry wrote. “When judges use their power of discretionary retirement to influence the political branches into picking a particular judicial nominee, they arguably cross the line into impermissible political activity. At the very least, it is not ideal for judges who must often sit in judgment of the other two branches to at the very same time be involved in negotiations with the political actors in those branches.”
There are similarities between Illinois’ state level process and the federal process, though Berry said there are important distinctions.
At the federal level, if judges want to influence who becomes their replacement, they still need to convince the president and Senate of the validity of that replacement.
“That’s often viewed – and correctly viewed – as inappropriate for federal judges to be bargaining or directly communicating with the president or members of the Senate,” Berry said. “You don’t have that in Illinois … this isn’t a situation where Supreme Court justices have to negotiate or make deals with the governor or the state legislature. They simply unilaterally are picking their own replacements.”
Illinois also doesn’t have the problem of subverting its intended system. At the federal level, the process entails a presidential nomination and Senate confirmation, and “having judges butt into that system is butting into a system they weren’t designed to be a part of,” he said.
“[The appointment process] is in the Illinois constitution, for better or worse,” he said. “The legislature has never … taken that power.”
However, Berry still holds doubts that the Illinois system is the best for the state.
“My biggest concern is … when you have justices directly picking their replacement, it may be too often ‘who do they know’ versus ‘who is most qualified but doesn’t have any personal relationship with [the retiring justice],’” he said.
Berry conceded he doesn’t know whether in practice that concern has been borne, noting that it’s a potential critique of the system.
But it still seems that the current system gives too much power to the Supreme Court, he said.
“It is more fair – and it gives the voters more control over the court – if justices make every effort to serve out their 10-year term and allow competitive election to take place, rather than serve out most of their term to allow someone else to fill that vacancy,” Berry said.
“[The appointment process] is an opportunity for the justices to give a very important professional benefit to someone of their choice, a benefit because it not only puts them on the court, but it also gives [the appointed justices] a head start to staying on the court full term and they never have to run in that competitive first phase.”
As for new historic moments, the fact that Holder White was first appointed, not elected, to her first term, shouldn’t detract from the historical significance of her place on the bench, just as it shouldn’t detract from the achievements of any other appointee, Tabor said.
After all, each justice has to run in a partisan election when their remainder of the seat’s term runs out.
“People are appointed to vacancies, and then they’re elected or they’re not,” Tabor said. “I do think the fact that they have to stand for election shortly after should kind of softens any objection to having appointments on the court.”
However, since 1970, only one justice appointed to fill a vacancy has lost a subsequent election. S. Louis Rathje was appointed in 1998 after John Nickels retired, Lupton said. In the primary election in 2000, former Justice Robert Thomas defeated Rathje.