Guest Commentary | 6 thoughts on Illinois’ unique process for Supreme Court vacancies

A month ago, Illinois Supreme Court Justice Rita Garman announced she was stepping down effective July 7, and state Appellate Court Justice Lisa Holder White was tapped by the court to replace her, at least until a partisan election to fill the seat in 2024. (Garman would have had to stand for a nonpartisan retention election this fall had she sought to remain on the court.)

Illinois is alone among the 50 states in empowering the Supreme Court itself to fill vacancies in its own ranks, at least on an interim basis. The practice seems to be for the departing justice, if they are 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 Garman tapped Holder White to take over the seat until the 2024 election.

While we have no bottom-line view on the wisdom of Illinois’ unique system, we do offer several thoughts:

1. Many other countries make use of “professional” tracks for would-be judges: Sitting judges, rather than voters or politicians, spot and nurture young talent for future judgeships. Having judges pick other judges may in some respects be better than having 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 (non-life-tenured) judges, such as magistrates and bankruptcy judges, are selected by other judges.

2. Judges picking judges makes more sense than judges picking, say, presidents, or prosecutors. The former was the knock, of course, on the infamous (and thoroughly discredited) Bush v. Gore decision 20 years ago; and the latter was the knock on the so-called Independent Counsel Act that brought the country the Morrison v. Olson case and the Ken Starr-Bill Clinton-Monica Lewinsky episode. Judges may know who good judges are, but judicial talent for assessing horse flesh outside the judicial arena seems more questionable.

3. Although the federal judicial selection model on its face is one in which presidents and senates pick Supreme Court justices, even U.S. Supreme Court selection processes are moving in the direction of “professionalization.” To make it onto the high court these days, it seems necessary for one to have gone to law school at Yale or Harvard and clerked for 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, its possible replacements, albeit two or three decades in advance.

4. 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 Donald Trump the chance to fill the vacancy on the strong hope (which Kennedy may have expressed in conversations with the president) that Kennedy’s former clerk, Brett Kavanaugh, would be the one to fill the seat.

5. 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 they must stand before voters. That 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.

6. Of course, 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 was 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 unelected) president, and still be eligible (under the 22nd Amendment, approved after Franklin D. Roosevelt’s four terms) 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 their vice presidents in the next election, just as we like the tradition started by George Washington (which reigned until FDR) of presidents running for only two terms.

Vikram David Amar is dean and Jason Mazzone is a professor and director of the Illinois Program in Constitutional Theory, History and Law at the University of Illinois College of Law.

via The News-Gazette

June 5, 2022 at 08:40AM

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