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Questionable Judgment?



Nobody running for public office likes to be put on the spot, but judicial candidates catch a break. Ask them an awkward question and they can say it would be unethical to answer. Maybe it would.

This month the Tribune sent judicial candidates in the March primary a list of seven questions. The first was the really awkward one: "The convictions and sentences of 12 people on Death Row in Illinois have been overturned in recent years. Do you support the death penalty? What measures should the Illinois court system take to provide assurance that capital punishment is used fairly and equitably? What measures should the court system provide to protect the wrongly accused?"

The second also put candidates on the spot: "Does the Illinois justice system appropriately monitor and provide discipline in cases of prosecutorial misconduct? What measures should be taken to protect defendants from cases of such misconduct?"

Do you support the death penalty? There are blissful judicial wannabes--perhaps running on the sturdy platform of a party endorsement and an Irish name--who wouldn't touch the subject with a ten-foot gavel. But others might jump at the chance to show some spine. "Early and often," they could swagger before their constituents. "Let God sort them out."

An acquaintance who knows enough about the Illinois judiciary to pray for merit selection sent me the Tribune questionnaire, and he was steaming. The Tribune is out of bounds, he insisted: candidates for the bench can't ethically take sides on the death penalty because it's an issue they might confront as judges. Besides, he went on, the Tribune's being perverse. "The Tribune is editorially in favor of a moratorium on the death penalty. If you force the candidates to take a position on the death penalty, the overwhelming majority will see the wisdom of saying they're in favor of it. It's very dangerous to be against."

But asking impudent questions happens to be the business newspapers are in. Besides, lots of voters want to know the answers--those first two Tribune questions cut to the issues and ideas that matter most about the candidates. "This year we have the most critical issues about the administration of justice since the Greylord and Gambat corruption scandals," Bruce Dold, deputy editorial-page editor and the questionnaire's author, E-mailed me. "Does the system protect prosecutorial misconduct? Can we have any faith in a system of capital punishment that has gotten it wrong at least 12 times? That's why we led off the questionnaire with those two issues.

"I want to know what candidates think, and a question of whether they support the death penalty starts to probe that. I suspect the response I'll get from many of them will be a non-answer, they'll vow to uphold the laws of the state. But if I don't ask the question, I won't get any answer."

Last year the Tribune ran long, angry series on prosecutorial misconduct and death-row injustice. In November it called for executions to be suspended. The paper warned that "unless the system is drastically reformed, it's just a matter of time before an innocent person is executed on behalf of us, the people of Illinois"--something an enterprising reporter might one day tell us has already happened. Now, appropriately, the Tribune's asking the next crop of judges to stand up and be counted.

Nevertheless, says Dold, candidates who reply that they can't ethically say what they think won't find the Tribune holding it against them. Until 1993 the rules of the Illinois Supreme Court probably did forbid judges to answer the Tribune's question. Today the wannabes can argue with straight faces that what has become permissible remains improper.

The watershed event of 1993 was the decision in Buckley v. Illinois Judicial Inquiry Board by the Seventh Circuit of the U.S. Court of Appeals. Robert Buckley was a state appellate judge who'd run for the Illinois Supreme Court in 1990. His campaign literature boasted that he'd "never written an opinion reversing a rape conviction."

The Tribune was grateful to Buckley for this shameless claim. "That was useful information--and one of the reasons the Tribune did not endorse Judge Buckley," Dold told me. But the Judicial Inquiry Board charged Buckley with violating the Illinois Supreme Court's Rule 67(B)(1)(c), which forbids a judicial candidate to "make pledges or promises of conduct in office" (aside from pledging to stay awake on the bench and promising not to decide motions by flipping a quarter) or to "announce his views on disputed legal or political issues." After the election, which Buckley lost, the Illinois Courts Commission ruled against him. Backed by the Illinois Judges Association, Buckley challenged the constitutionality of the rule in federal court.

He lost at the trial level but triumphed on appeal. Appellate judge Richard Posner, who's written or edited some 30 books on the law and might be the least appropriate judge in America to tell aspiring jurists they can't say what they think, wrote the opinion. Two principles were in conflict, Posner reasoned: that candidates for office should be free to express themselves and that judges should decide cases uncompromised by their verbal histories. These principles might not be easy to reconcile, Posner went on, but the rule limiting speech was so sweeping and absolute that "the only safe response to Illinois Supreme Court Rule 67(B)(1)(c) is silence."

So the appellate court overturned the rule, and then the state supreme court rewrote it. The press hailed this outcome. The Seventh Circuit "should be applauded," proclaimed a Tribune editorial headlined "Ungagging the Judges." The Saint Louis Post-Dispatch said the appellate court "has taken the common-sense step of letting judicial candidates in Illinois tell the voters what they stand for."

But what's common sense to a journalist can strike a jurist as fraught with hazard. The new rule, borrowed from the 1990 Model Code of Judicial Conduct of the American Bar Association, says judicial candidates cannot "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court." This language cuts candidates a lot more slack, allowing them to say what they think about legal issues so long as they add the assurance that they're not making any promises.

The outcome of Buckley troubled Steven Lubet, professor of law at Northwestern University, coauthor of the book Judicial Conduct and Ethics, and occasional Tribune essayist. "Of course, all information is useful in elections," he wrote me this week. "The problem with judicial commitments is not that they are useless but that they have the potential to turn elections into referendums on individual judging. Judges are not supposed to be representatives of the electorate, but rather independent decision makers faithful only to the law....The Buckley decision, in my opinion, was not wrong in its specifics (i.e. regarding Judge Buckley himself), but it did not give sufficient weight to institutional issues in maintaining an independent judiciary."

Supreme court justice Mary Ann McMorrow voted against her court's revisions and warned: "The new Rule is short-sighted because it places candidates for judicial office in an unseemly position where they may feel compelled to 'pander' for votes by publicly adopting views which appear popular to the electorate."

That's what attorneys for the Judicial Inquiry Board had warned the appellate court would happen--that, in Posner's own paraphrase, a candidate currying public favor would "make commitments...and having made such a commitment would be under pressure to honor it if he won the election and such a case later came before him." And it's what the acquaintance who sent me the Tribune questionnaire fears will happen now. The newspaper intends to post responses to the questionnaire on its Web site for public consumption, and he's concerned that the temptation to pander will prove irresistible.

"We made the point [in 1993], and still believe, that a gag rule doesn't promote an impartial judiciary," says Dold. "It prevents biases from being publicly identified."

The disagreement here turns on divergent ideas of first principles, not of the electorate. Candidates who pander presumably calculate that they'll gain more votes than they lose. Critics of disclosure don't doubt this math, and cynicism about judicial elections runs pretty deep in the media too. It's just that among journalists disclosure is its own reward. The Tribune doesn't ask the right questions with any confidence that the public will flock to the best answers. It just asks the right questions.

News Bites

As a rule, any news that your favorite TV station teases viewers with all evening long won't be worth the wait. Last Thursday night the station I was watching, Channel Five, dropped hints about Michael Jordan at every station break. Is Michael coming back to the NBA? Will it be with the Bulls? Details at ten.

If Jordan were actually putting a uniform back on, it wouldn't be news at ten. It'd be "We interrupt this program." By being in no hurry to tell us what happened, Channel Five was telling us nothing much had. Jordan was exploring an ownership role with the Washington Wizards, something newspaper readers had known since breakfast. So it was a typical TV news story--lifted from the dailies.

The next day reporters hit the street for public reaction. In other years the place to go would have been Michael Jordan's restaurant, which, alas, has closed its doors. So Channel Five interviewed passersby on the sidewalk outside the shuttered restaurant. Habits die hard.

A Glasgow poet named Donny O'Rourke came to Chicago for a time and in 1991 published a collection of poems, Second Cities, that should be better known here. O'Rourke is coming back to town this weekend for various festivities that observe the 241st birthday of Robert Burns, and he'll be reading publicly from Burns's and his own works Monday evening at the Lincoln Park Book Shop.

One of O'Rourke's poems is called "Algren," and here's a part of it: "The book you're writing, / The Man With the Golden Arm / will make a movie star of Sinatra / and not one royalty cent for you / last of the bare-knuckle poets, / more famous in the end / for being the first man / to make Simone de Beauvoir come / than for anything you wrote."

These fine lines prompt a question. The new movie The Hurricane plays fast and loose with the facts of some young Canadians who tried to spring Hurricane Carter from prison. Why focus on them? Nelson Algren was a seedy old fart long past his Beauvoir days when he pulled up his socks in 1975 and headed east to write a book about Carter. Algren wasn't responsible for eventually freeing the boxer, but neither were the Canadians; Carter's lawyers deserve the credit The Hurricane didn't give them. Since the movie was telling lies anyway, why not tell them about the strange alliance between the railroaded black boxer and the washed-up white writer who used to be one of the greats. Hell of a story. And Beauvoir and Sartre could have had cameos.

Art accompanying story in printed newspaper (not available in this archive): photo/Nathan Mandell.

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