Last week a good friend of the law school where both of us teach (the University of Illinois, Urbana-Champaign), Illinois Supreme Court Justice Rita Garman, announced she was stepping down effective July 7, 2022. Justice Garman, a moderate Republican, has served with distinction on the Illinois high court (including a three-year stint as chief justice, a position the justices themselves vote for) since 2001.
Shortly after Garman’s retirement announcement, word came down that she was going to be replaced, at least on an interim basis, by another great friend (and, in this case, alumna) of our College of Law, state appellate court Justice Lisa Holder White, another Republican jurist whom many also label as moderate. Justice White’s selection came as no surprise to us; her regular and generous involvement with our law school always left us impressed with her talent, demeanor, and presence, and most astute observers of Illinois politics might have known her elevation was only a matter of time.
What did cause both of us to stop and think, however—probably because we deal mostly with federal, rather than Illinois, constitutional law (even though we teach at the flagship public university in the state and are learning more about our state’s constitution all the time)—was the mechanism by which Justice Holder White was tapped to fill the seat Justice Garman currently holds. It turns out that the Land of Lincoln is alone among the 50 states insofar as Illinois (in the state constitution) empowers (if the legislature has not provided otherwise) the supreme court itself to fill vacancies in the court’s membership, at least on an interim basis. (The Illinois Supreme Court also may, unless the legislature provides otherwise, appoint persons to fill vacancies on the lower courts in the state.)
As a general matter, the seven justices on the Illinois Supreme Court are chosen by popular vote in partisan elections to serve 10-year terms. Each of the seven is elected from one of five specific geographical districts across the state drawn for purposes of judicial selection. Cook County (where Chicago is located) makes up one district, and residents of that district elect three of the seven justices; the residents of each of the other four districts throughout the state elect a single justice per district. These districts don’t comply, by the way, with the one-person, one-vote principle, which has been held by the U.S. Supreme Court not to apply to (at least some) judicial elections. The Illinois constitution does provide, putting Cook County aside, that each of the four other districts at least be of “substantially” equal population, but in practice that requirement hasn’t been followed. In 2021, census data showed that one of those four districts had about 3.2 million people, and two others had about 1.3 million people each.
At the completion of a ten-year term following a partisan election, each justice must then (if she wishes to continue on the court) compete and succeed in an uncontested nonpartisan retention election. If a justice is retained at such an election, she can hold the seat for another 10 years, after which she is eligible to stand for additional retention elections every ten years. Justice Garman, who is 78, had won one partisan election and one retention election, and would have had to stand for another retention election in the fall of this year had she desired to continue to serve on the court.
When a vacancy occurs before the end of a justice’s 10-year term, Illinois law provides that the appointed justice (who must come from the district in which the vacancy arises) is to serve until the next general or judicial election in the state. The law also provides (presumably to give an appointed justice time to campaign) that if the vacancy is filled shortly before (and certainly after) a primary election but before the general election in an election year, then the appointed justice serves until the second upcoming general election. Because the vacancy created by Justice Garman’s departure is set to occur after the 2022 primary election, Justice Holder White will not be required to run in the fall of 2022, but instead will serve until the 2024 general election, at which time she will have to run (and win) in a partisan contest to stay on the court.
While technically it is the whole Illinois Supreme Court that fills an existing or upcoming vacancy, the practice seems to be for the departing justice, if she is able, to make a recommendation as to an interim successor, and that recommendation seems to be afforded great deference by the court; reports are that Justice Garman tapped Justice Holder to take over the Fourth District seat until the 2024 election.
As we noted above, Illinois is unique among all the states in allowing its supreme court (and effectively a single member of the court) to pick replacements for the court.
While we would have to do a lot more research and give the matter a great deal more thought before we expressed firm views on whether Illinois’s’ system of Justices (temporarily) filling high court openings is a good one or not, we offer several observations on this unique vacancy-filling practice:
- A lot of other countries make use of “professional” tracks for would-be judges. In these systems it is essentially judges, rather than voters or politicians, who spot and nurture young talent for future judges. Having judges pick judges may in some respects be better than having other partisan elected officials do so. Even in our federal-court system, in which we think of judges being nominated by the President and confirmed by the Senate, some judges are selected by other judges. Federal magistrate judges are appointed by majority vote of the active district judges of the court on which the magistrate judge will serve. Bankruptcy judges are appointed by majority vote of the judges within a United States Court of Appeals Circuit. While neither magistrate nor bankruptcy judges are Article III judges (with the protection of lifetime tenure), service in those positions is often a stepping-stone to a district court or court of appeals judgeship.
- Judges picking judges makes more sense than judges picking, say, Presidents. That was the knock, of course, on the infamous (and thoroughly discredited) Bush v. Gore decision 20 years ago.
- Judges picking judges also makes more sense than judges picking, say, prosecutors. We raise this because judges picking prosecutors is what federal law provided for in the now-defunct so-called “Independent Counsel Act” that brought the country the Morrison v. Olson case and the Ken Starr-Bill Clinton-Monica Lewinsky episode. Indeed, the special panel of federal judges (tapped under the Act by the Chief Justice) who selected Ken Starr did so precisely because he was a known quantity—as a former federal judge. But he had not a day of prosecutorial experience before he was chosen to run the country’s most important prosecutorial office. Is it any wonder his office made decisions that many people found very questionable? Judges may know who the good judges are, but judicial talent for assessing horse flesh outside the judicial arena seems more questionable.
- Although, as noted above, the federal judicial selection model on its face appears to be one in which Presidents and Senates pick Supreme Court Justices (but compare Bush v. Gore, above), even U.S. Supreme Court selection processes are moving in the direction of a “professionalization.” To make it onto the Court these days, it seems necessary for one to have gone to Yale or Harvard law schools, and clerked for a federal appellate judge or (more likely) a U.S. Supreme Court Justice oneself; six of the nine current Justices—and that number won’t change when Ketanji Brown Jackson replaces her former boss Stephen Breyer—themselves clerked at the Court. The Court really is grooming, and narrowing the field of, the Court’s possible replacements, albeit two or three decades in advance.
- Indeed, individual Justices seem to be playing a bigger role in the selection of their own, individual, successors on the U.S. Supreme Court. For example, many people believe that Justice Anthony Kennedy stepped down and gave President Trump the chance to fill the vacancy on the strong hope (which Justice Kennedy may have expressed in conversations with the President) that Kennedy’s former clerk, Brett Kavanaugh, be the one to fill the seat.
- Such apostolic succession at the U.S. Supreme Court is more dynastic and entrenching than what law and practice call for on the Illinois Supreme Court, insofar as in Illinois the interim justice can serve for no longer than a little over two years before she must stand before the voters. It is true that Justice Garman’s second ten-year term was slated to end this fall, and that Justice Holder White will be in the seat at least until 2024, but extending one’s term (by tapping a hand-picked protégé successor) for a few years is nothing like a U.S Supreme Court Justice being able to choose a replacement who might serve (and extend the original Justice’s influence) for another four or five decades.
- Of course, Justice Holder White might have some benefit of (short-term) incumbency by the fall of 2024. This puts us in mind of what some called on President Bill Clinton to do after he got in hot water over the Lewinsky affair and got impeached in 1998—namely, step aside and let Al Gore ascend to the presidency so that by the time the 2000 election occurred, Gore would have been able to run as an incumbent (albeit an unelected one) President, and still be eligible (under the post-FDR 22nd Amendment) to be elected to two full presidential terms. We think such a move might have helped Gore win in 2000, but on balance we like the tradition against presidential resignations to help Veeps in the next election, just as we like the tradition started by George Washington (a tradition that reigned until FDR) of Presidents running for only two terms.
- Another federal setting in which apostolic succession possibilities could arise is U.S. Senate vacancies. As one of us (Amar) explored in a law review article a while back, a small number of states seek to require governors, when they temporarily fill U.S. Senate vacancies, to pick someone off a shortlist generated by party leaders of the same party as the departed senator, presumably to preserve continuity in office until the next election. Amar challenged the constitutionality of this practice. In doing so he also mused that if we really wanted to replicate the departed senator until the next election, wouldn’t the constitutionally preferable approach be to have a senator designate his own successor (presumably pre-departure) and have the governor be required by law to respect that apostolic succession? Without opining on the permissibility of such an apostolic approach there, Amar did note that one question that might arise is whether a senator’s list of successors should be made public during the campaign in which s/he is elected. (That notion may be less relevant to Illinois Supreme Court justice elections, since such justices are elected for almost twice as long, ten years vs. six years, than U.S. senators, a fact that makes the replacement list harder to fashion.) Another question that might arise (in both settings): whether spouses and relatives should be permitted to be a chosen successor.
- In assessing Illinois’s decision to let justices pick justices, one must always ask, as compared to what? As most analysts (and citizens, for that matter) would likely acknowledge, the President/Senate federal model certainly has flaws. And the kinds of partisan elections Illinois uses for the full ten-year terms are also open to a great deal of criticism. Partisan elections for judges (with the fundraising problems it generates) are unseemly, and particularly so where, as in Illinois, the elections are not held statewide but instead in districts of unequal population. At least statewide judicial elections (popular in some other states) give justices the same kind of credibility that governors and U.S. senators have; persons elected via districts—and the bodies they make up—are always subject to various kinds of gerrymandering influences. So delaying a partisan high court election for a few years may not be a bad thing for those who disfavor partisan judicial elections altogether.
- Finally, we recognize that many observers may not, as a general matter, favor a state supreme court being able (like a law faculty) to easily replicate itself, with each person tapping her own handpicked successor. (And here the Illinois Supreme Court’s power to fill vacancies on its own court might differ a bit from the court’s power to fill vacancies on lower courts.) For those who are troubled by the self-replication aspect, perhaps the practice of honoring departing justices’ wishes could be revisited, or perhaps a supermajority requirement—in which, say, 5 of the remaining six justices have to coalesce around someone—could be considered. Such reforms might reduce perpetuation of ideological extremism, if such extremism is viewed as a problem, on the court. To be sure, giving individual justices a (near) veto on replacement picks might be a power that is abused, but every justice has some incentive to have a full complement of colleagues so that all the work gets done.