Twenty years ago, I ran for judge the first time and went before the bar association evaluation committees. I was four years out of law school. Despite the fact that they had a tradition of not finding anyone “qualified” to be a judge who had less than 10 years of experience, I thought I'd be different.
I also heard they made exceptions to that rule—but I had no idea when or why. And mysteriously, neither did anyone else. Was it Cook County politics? (Sometimes.) Friendships and alliances? (Sometimes.) Or for other exigent reasons? (Yes, that, too.)
I had everything going for me, I thought. I was an award-winning journalist before I went to law school, which I felt proved I had integrity. And after I graduated from law school in my 40s, I was certain I'd done more in four years than younger lawyers had done in 10--or even more.
And that was quite true. You can read a summary of my background as a lawyer here.
But they didn't find me qualified. Or recommended.
I went back two years later with six years experience and they did say complimentary things about me. They told me they wished they could find me qualified, that I deserved it, but they just couldn't give anyone with only six years experience the nod. I was told I was doing everything right, and to just keep doing what I was doing, but do it for more years.
So I did. But when I went back several years later, I got more of the same. As in other years, I faced a totally arbitrary mix of volunteers who do this in their spare time, always a different mix, the luck of the draw, and depending on who’s there, the groups can go either way, depending on how the personalities in the room see it and what they say to each other.
Several of the bar groups band together (The Alliance of Bar Associations) and do the candidate evaluations at the same time; one group (the Chicago Bar Association) does it alone. The idea of The Alliance was to let candidates take care of the application/investigative/interview process with many groups at once.
One problem: if a candidate has a bad day or a bad question or two, the candidate can blow up to 12 evaluations at once.
I was, however, eventually found qualified, after 15 years of experience by three of the groups who do the judging of the would-be judges.
Here are the “good” things two of the others who found me unqualified said then (and only two at the time actually wrote things; now it's three): “Ms. McGrath is praised for her temperament and is a prolific writer in legal journals…." "Ms. McGrath has an extensive background in legal analysis and writing and is active in community affairs.”
Sounds like someone we’d like to see be a judge, right? Read these things again: good temperament. Prolific writer in legal journals. Extensive background in legal analysis and writing. And active in the community.
But a big NQ and NR, they told the public.
What could possibly have prevented me from getting a recommended, qualified, even a highly qualified rating? Could they actually find someone with those essential and so-important qualities for being a good judge not qualified to be a judge?
Other things they said—in spite of writing these positive things about me—were that I lacked “complex litigation,” “depth and breadth.”
What? How could anyone who is a prolific writer in legal journals with an extensive background in legal analysis and writing (with a good temperament, to boot) be rejected as a perfectly suitable judicial candidate? The very definition of the the words above are subsumed in the definition of qualified for judicial office!
I said I’d never go back to the bar associations if I ever ran again—in spite of the three who did the right thing. And I haven’t.
But I am running again in the primary March 20. And all the groups have found me Not Recommended because I didn't participate. Why not just ignore the candidates who don't participate? Leave his or her name off the list? Leave the space next to his or her name blank? Or have a designation like DNP? Instead they say Not Recommended, which is synonymous to a bad evaluation in the world of bar association ratings.
Here are some excerpts from a 2016 evaluation of one of my current opponents (a temporarily appointed judge who had to run to keep her spot) when they didn’t find her qualified that year: “Lawyers who have appeared before Judge Shoffner expressed concerns about the judge’s knowledge of the law, work ethic, fairness, and judicial temperament and demeanor.”
But two years later, she moved to my neighborhood to run again to keep her subsequently appointed spot (which is a whole other story) and the same bar association said “she is working to address concerns about her legal knowledge and temperament.”
And they found her qualified! Although she is simply “working” on her temperament and legal knowledge. One would think that after two years, she should have conquered those problems once and for all to be found qualified, right?
Apparently not. Which proves something about the bar association ratings designations, doesn't it?
Most of the people who do the evaluations mean well. (And yes, I, too, believed in the evaluations at one time, and volunteered for years with The Alliance on the other side of the process.) They think they know who will make a good judge and who won’t. Sometimes, representative lawyers from all the bar groups are there, sometimes not. Sometimes the same people will represent more than one bar association. And that means one person can make the decision for many. I have done that myself.
Unfortunately, I have witnessed some people in the rooms with a bias or an agenda. And I have seen a lot of elitism. But that’s human.
Sometimes, they just don’t see things very objectively. And that's human, too.
Or a good friend of theirs is being evaluated. I have heard that some candidates get their friends to volunteer the day they come before the panel.
All of this is human—but that doesn’t mean that anyone should be hurt by others' biases or agendas. Or personal preferences. Especially when what they say gets widely circulated to the public and not at all well explained.
Plenty, plenty, plenty of sausage is made in these rooms. And plenty of exceptions are made for people for all kinds of “reasons.” I can’t say more along these lines--but sure wish I could—because everyone in the rooms where this happens has to sign a confidentiality agreement. Some of the things I could say are not pretty..
Value judgments abound. That’s no secret. If a volunteer identifies with a lawyer, I believe that lawyer will get a good rating from that lawyer. And vice versa.
One evaluator in one of the rooms I visited as a candidate scoffed at the great amount of pro bono work I had done (so much that the pro bono award for sole practitioners was bestowed on me by the Chicago Bar Association), implying that if the work was not paid for, it didn't count. As though the rigorous standards that lawyers must uphold are somehow not upheld if the work is pro bono. That for some reason, it was worth less, and didn't provide a candidate the "right" experience.
In my case, I’d like the bar associations who use complex litigation as a value judgment to define what it means. What's the difference if you have one big complicated case that you have to break down into smaller pieces to work on along the way, or a ton of smaller cases to deal with, organize and think about? The latter is actually harder because a bunch of smaller things generally have nothing in common; different people, different issues, different goals. And all those differences are more taxing on one's mind—and life.
I would put my legal resume up against anyone else's. While my background may be different, there is no reason to select cookie cutter backgrounds. The bench needs to be diverse, too--and the legal backgrounds of the judges are just as important as anything else when it comes to diversity.
In fact, diversity also comes in the form of an occasional candidate having some deep-seated mob connections in the family, too. Somehow, that never gets mentioned or paid attention to in the evaluation process.
Several judicial candidates running this time (and in the last election, too) have made serious ethical mistakes and have been censured or had their licenses suspended for a time, but were found qualified to be judges nonetheless. Yes, you read that right.
So, if you have complex litigation in your background, you can make mistakes that hurt your clients, or be dishonest in your dealings with clients--and be found qualified to be a judge? What kind of a system is that?
An arrogant one.
The irony is that when a bar association says someone is not qualified to be a judge, that is exactly what people think: that they have been very unethical or that they are terribly dumb.
And vice versa.
It’s quite a burden for a candidate such as myself to carry that around. And to explain. In fact, it’s impossible. And a terrible challenge, for no reason at all. It's a roadblock to getting what you want.
Being on both sides of the evaluation process for 20 years, I have found the system totally arbitrary. The people who do the evaluations are not real investigators or professional evaluators—they have NO idea who will make a good judge and who won’t (more on that in a minute). They are often pressed for time.
The candidates apply for the evaluation on an application that asks for the candidate's work history, his references and answers to some supplementary questions. The CBA asks how your current income compares to a judicial income!
Many lawyers have solid careers but they don't conform to the narrow questions on the application, like fitting square pegs into round holes.
One bar association has always placed a value on calling people who are not on the list; people who are not one of the references given by the candidate. That's a good idea in theory, I guess. But that's better left to professional investigative reporters who know how to dig for information properly. Bar association volunteers are not qualified to do that.
Are they not even checking the disciplinary backgrounds of the candidates these days? And if they are and telling the public they are qualified and not mentioning the discipline they received from the Attorney Registration and Disciplinary Commission, that’s even worse. And by the way, which is it? Are you not checking? Or are you checking and not mentioning?
And then there's that other crazy thing: what often happens is that many candidates get mixed results. Some bar associations will say yes, others will say nay. And come on, how the heck does that help the public? Right off the bat, some of the bar association ratings are going to be right; and some wrong. Without question--the judge is either going to be good or bad.
Even if you believe in what the bar associations do, what does it mean when they put out mixed results? It just goes to show what a rotten system it is. Remember, aside from the CBA, all the other bar associations do their work together; they look at the same person at the same time and very often get different results. They make different value judgements.
And more often than not, someone will get an obvious "upgrade" from an ethnic bar association of which they are a member. I'm just saying.....
Wouldn’t it be better to hire professional investigators or former newspaper investigative reporters to do this work? No one should pretend that these are any kind of real investigations that the bar associations are doing. They simply are not. These are fellow lawyers making value judgments about people--and they have no right to make them. Especially when they don't have any advance clue about how a judge will actually do.
And yet they make these dastardly judgments to their hearts’ content. Seizing on a popular meme--that the public knows nothing about those running for judge--the bar associations have stepped up to fill people in. But not very well. They are giving voters a false sense of security--and making voters feel like they have become educated about the candidates.
They are basically spreading gossip. And the reports often have just that after a member of the bar association calls the references. And a rating may be based on this "gossip" and the candidate may not ever know what happened. That the evaluation was based on something in a report that is discussed by the group but never shared with the candidate!
They are putting one over on the public.
Talk about lawyer to lawyer civility! What the bar associations do to judicial candidates is a violation of that goal, one to which the legal community pays plenty of lip service. What the bar associations do to members of the legal profession who want to run for judge is not civil.
The judges should run campaigns like any other political candidates. Because that, in fact, is what they are. And regular people can make the same judgment call on a judicial candidate, just as they can on any other candidate, for better or for worse.
Perhaps, you might say, once a judge becomes a judge, when there are plenty of stories that can be told by lawyers and members of the public about how a judge acts in court, well, ok, an objective evaluation can be made. But even when the bar associations do evaluations for judicial retention, there are often mixed results. One group says the judge acts like she's nuts on the bench. Another group says she's brilliant.
The newspapers should do plain old good reporting about what goes on in courtrooms. They've done it before when judges abuse the public--and they can continue to do so.
With mixed results after the fact, evaluations should never be done prospectively—based on speculation and imagination. If those watching a judge for six years can't decide if a judge is competent or fair, how can evaluators figure out if a judge will be good or bad henceforth?
Unless a lawyer running for judge has done something very wrong, a candidate should be left alone. If there is evidence of wrongdoing, the newspapers should be told--and encouraged to follow up. Not the bar associations.
At the very least, there should be the consistency of having the same people doing the evaluations for every candidate. Make the job of evaluator a full time job. Pay them. That might ensure a certain level of fairness, at least; if every candidate is seen by the same evaluators, they might learn to do a professional job using fair, not hurtful criteria during a meaningful and open procedure.
If the investigators are so darn good, why do they need an application from a candidate to do an investigation? Why not just investigate all candidates, whether they apply or not? And tell the public if they've been disciplined, if they have been? And if they haven't been, say nothing.
Nothing evaluators do should ever be embarrassing to a candidate. Unless, perhaps, serious matters in their background come to light—like theft, courtroom dishonesty, neglect or abuse of clients, bribe taking or bribe making….that sort of thing. Certainly a person who lacks “complex litigation” in their background should not be lumped in with law breakers, drug abusers and....who knows what?
Why taking depositions in your career would make one a good judge, I don't know. But one bar association member doing evaluations told me that, when I said I'd never taken one. She didn't see the connection--if asking relevant, tricky and probing questions was a skill she wanted to imagine was important--to the art of asking questions by a journalist, which I'd been for a good part of my life.
Those with serious violations in their background should never be let off the hook and called “qualified.” Not when someone with less than 10 years experience is called unqualified! Or someone who hadn't taken a deposition, but instead called on all kinds of people through the years and asked all kinds of questions.
To call someone "unqualified" in public is an atrocious abuse of power. The public has no idea what that means. Most think it means extreme stupidity or blatant crookedness.
I cannot tell you how many people the bar associations have found qualified and highly qualified who have subsequently been indicted. (Or become very lousy judges.) Going back to the the Greylord years—all the way to the present. A judge was just convicted of fraud in federal court. Her initial bar ratings a few years ago were overwhelmingly positive, and based on that, the Chicago Tribune endorsed her.
And one judge two years ago who was found unqualified by the Chicago Bar Association found herself presiding over one of the busiest and most important courtrooms in Cook County within a year of taking the bench--and also teaching classes to hundreds of lawyers on how to handle their appointments as arbitrators for the Cook County Mandatory Arbitration program. UNQUALIFIED to be a judge, they said?
Several years ago, I did my own very simple research into the evaluation results . (See postscript for my methodology.) And this is what I found: The bar associations have no predictive power whatsoever, in terms of predicting how well a judge will do on the bench. And when they get it right, it's an accident.
They also can't predict how honest a judge will be.
I looked over six years of evaluations. So that theoretically I covered the entire elected judiciary. I looked at the candidates' initial ratings before they were elected and at their rating six years later when they were up for retention. And I studied the Illinois Courts Commission annual report, as well, which is the body charged with removing errant judges.
What I found is that for candidates without "enough years' experience" as a lawyer (for the most part, less than 10 years, according to the bar associations), there was no correlation between how they saw the candidates initially in terms of lack of experience and how the candidate actually did. NONE.
And there was a very strong relationship between those who were disciplined by the commission and their positive ratings, as well. Overwhelmingly, those disciplined by the ICC were found qualified and highly qualified.
With correlations like these, each and every member of the bar committees that evaluate candidates must ask themselves whether what they are doing is causing more harm than good. The answer is yes, and they should do the right thing and stop doing what they are doing and how they are doing it. They're wasting time and hurting people.
When I mentioned this to some higher-ups at the bar associations years ago, they simply rolled their eyes. No one was the least bit interested. I suggested that they evaluate their process. No one was interested in that either.
On the contrary, they will "defend" themselves by describing all the tedious work they do during their investigation and interview process--and make fun of people who weren't found qualified, calling any criticism from them "sour grapes."
It's possible that my results may not be so starkly "recreatable" these days. Not because the bar associations have gotten more right; but I have seen, as the years go on, less people run, people who don't want to take any chance at all of being embarrassed by them. So more and more of the cookie cutter, go along, get alongs run--and less of the outside-the-box types. And that is sad for everyone, public included.
And then there are the arbitrary, confusing and totally misapplied and misunderstood "rules" about when a candidate can come back--or should come back--for another look/see. It should be every time a candidate runs for judge, right? No. For some reason the bar associations think their judgments are so perfect, objective and thorough, you don't necessarily get to come back if you run again.
And no one in the legal community in Cook County seems to understand when a candidate with a low rating can come back; or when a particular candidate with a qualified rating is due to come back.
What if you have corrected your resume to their liking? Should a candidate be stuck with an unqualified rating for the next election? Apparently they don't care. What if a candidate has become a drug addict or has developed Alzheimer's? Should a "highly qualified" rating stick? They don't care about that either.
And no one I know can figure it out. It makes no sense!
One bar association president many years ago announced that his evaluation committee would not do evaluations of new associate judges after two years of their actually sitting on the bench—because they’d already been evaluated before they were appointed to the bench! Jeesh!!! When I pointed out the absurdity of that, he didn't understand it at all. He thought it was superfluous to find out how the new judges were actually doing!
The bar associations need to evaluate themselves before they evaluate candidates and publish their results. Can anyone deny that?
I think the public is being misled thinking that what they are doing is meaningful.
An idea for improving the “evaluation” process to serve the public includes compiling material and reporting objectively about candidates. In other words, put out a book of legal resumes, CVs, legal community involvement and leadership reports for each of the candidates. Let professionals investigate the accuracy. Don’t let candidates lie or fudge. Call them out if they do. And if all is kosher, let the public decide after reading the reports who to vote for.
Or have a professional company come up with objective testing and create a judicial commission of some sort to administer the test. Make the results available. And explain them completely. At law schools in other countries, new graduates become judges right off the bat because they "major" in judging, not lawyering. Why not have a course for lawyers that they must participate in if they want to be judges--and then test them? Let them explain during their campaigns how they did on the test? (Or let their opponents do so!)
In many worldwide jurisdictions, those wanting to be judges study a curriculum of sorts. When they graduate, they are presumed to be prepared for the job. Perhaps we in Illinois should require such a course of study for all would-be judges?
And in some states, judging is a part time job that one applies for and gets appointed to--thus giving many in the profession a crack at being a judge. If they don't perform well, they don't get their part time position back, unlike in Cook County, where judges essentially have a job for as long as they want it. Good or bad, found qualified or not!
But really, let's face it: nothing can predict how well a lawyer will actually do as a judge. It's a chance we all have to take, just like in any other elective office.
In other words, don’t make candidates look like dopes or criminals—unless they really and truly are. And it can be PROVEN. A concept that lawyers know well.
Postscript: April 15, 2018
Researcher Dr. Albert J. Klumpp, who knows a lot about the science of judicial elections contacted me a few days ago, asking what I meant by “inverse relationship.” That was a term I used when trying to describe the results of my informal research (above) concerning the bar associations having no predictive power in at least two areas: experience and ethics. Klumpp was correct that I used the term (a rather technical mathematical term) incorrectly and I have taken it out above. Klumpp also asked me to explain what my research entailed. I answered his email, and I am sharing the gist of that answer right here:
In 2000, a close friend of mine ran for judge and won. Some of the newspaper reporters made fun of her because she only had four years of experience as a lawyer. I felt there was no reason to believe she wouldn't be just fine. And that they shouldn’t be parroting the bar groups' opinions that she wouldn't be.
So I went through six years of judicial bar association ratings. I looked at the years of experience the judges had as lawyers the year they ran and won. If it was less than 10 years, in virtually every case either the candidate didn't go before the bar panels because they knew they wouldn't be found qualified, and were indeed found unqualified; or they were found unqualified if they did go.
Then I looked at the retention ratings of the same candidates six years later. Not too many judges are found unqualified for retention, so my results rested mostly on those who were found qualified for retention—but found unqualified 6 years before, either having gone or not gone to the bar associations, but all having had less than 10 years experience when they initially ran.
The bar associations’ initial ratings had NO bearing on how well a judge did, as far as I could see. The majority of the ones found unqualified based on years of experience (having gone or not gone to the bar associations--and I only used the ones with less than 10 years of experience if they hadn't gone) were found qualified for retention.
(For example, one candidate who ran in 1992 for the first time who was licensed in 1976 but didn't go through the bar association process and was found unqualified at that time—and subsequently found not qualified for retention—was not used in my study.)
I also wrote a short letter to the editor in the Tribune defending my friend and citing my "research."
As far as ethics, I read several Illinois Courts Commission annual reports for recent years. When I studied the cases in those reports, almost every judge, if not every judge who was disciplined (from censure to disbarment), almost 100 percent of them had been found qualified or highly qualified for election or retention.
I remember it being overwhelming. The bar associations had virtually no clue that a judge was, or would be unethical.
It seemed at the time, and it still does, that the bar associations want it both ways. They want the public to believe them, but they don't explain why they should be believed. And they don't tell people the truth: that if they check back six years later, that they will have been wrong. Because so many judges they said should not be judges turn out fine.
The bottom line is this: Why should people be hurt and embarrassed by a "not qualified" or "not recommended" rating if six years later, they are likely to be just fine? Lawyers who have an interest in becoming judges will most likely do fine. And for the handful who don’t do well, it’s just as likely (actually more so) that the bar associations are totally unable to see it coming. It’s not worth the time, effort, money and hurt feelings for the bar associations to try to identify how anyone will do. Their record is terrible and they shouldn’t even try. They should cease and desist—or find a better method for evaluating judicial candidates.
My vote would be for a system that never hurts anyone. Unless a judicial candidate truly deserves to be kept off the bench for some egregious reason. But the bar associations hardly ever seem to come up with anything the least bit egregious, just value judgments that don't seem to have any relevance as to how a judge will actually perform if they are lucky enough to win an election or be appointed.
To tell people that years of experience matters--when it appears irrelevant when someone with 5 years experience does just fine and someone with 25 years acts like a big idiot--is egregious.
Not to mention this fact: that some of the candidates they are finding qualified have been disciplined by the ARDC for things like telling their clients they have filed suits on their behalf and that everything is moving along smoothly when they NEVER filed anything. That is beyond the pale.
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