November 16, 2011
JUDGE-MAKING IS NOT UNLIKE SAUSAGE-MAKING

ANALYSIS & OPINION BY RUSS STEWART

The making of judges, in Cook County as well as throughout Illinois, is akin to the making of sausage. To the squeamish, you don't want to know how it's done or what disgusting ingredients the seemingly delectable end product contains.

Here's a tale of judicial sausage making, circa 2011. To use a hackneyed phrase, the best and the brightest it ain't.

Illinois Appellate Court, 1st District: Every frustrated litigant dreams of revenge upon the judge who thwarted a grand money-making or revenge-inflicting scheme. If they can't blame their lawyer, then the dastardly judge is the focus of their venom. "Off the bench" is their hue and cry.

Joe Berrios allegedly got his opportunity. The powerful county Democratic party chairman, who also is the county assessor and the 31st Ward Democratic committeeman, got his payback: "Off the Appellate Court with Rudy Garcia."

"It was revenge, pure and simple," veteran Appellate Court Justice Rudy Garcia said of Berrios. "I'm a sitting justice. I'm the senior Hispanic on the court. Of the five (Appellate Court) vacancies on the ballot in 2012, appointed or assigned incumbents were slated for four. But because I ruled adversely on a ballot challenge to Toni Berrios in 2004, Joe Berrios is now wreaking his revenge."

"That's total bull," Berrios retorted. "That's disgraceful and undignified language coming from a lawyer and a judge. If he would have gotten off his (butt) and lined up support from committeeman, he would have been slated. If he could not find support, it's his fault." Instead, Berrios backed Circuit Court Judge Jesse Reyes for the Appellate Court, and Garcia will oppose him in the March 20, 2012, Democratic primary.

Garcia, a Mexican American from the South Side who was elected to the Circuit Court in 1996 and "assigned" to the Appellate Court in 2003, was part of a three-judge panel which heard the appeal of objections to the nominating petition of Pedro DeJesus, who was running for state representative in a predominantly Puerto Rican North Side area centered on Berrios's 31st Ward. In 2001 Berrios, a former state representative and a close ally of Illinois House Speaker Mike Madigan, who then was a Board of Review commissioner, imposed on Madigan to create a legislative district for his daughter Toni, then a 24-year-old who had yet to graduate from college. She won the seat in 2002.

In 2004 DeJesus filed against Toni Berrios. Tom Jaconetty, Berrios's deputy at the board, was the attorney who handled the objection. The election board and the Circuit Court denied the objections, and it landed in the Appellate Court on appeal. Garcia said that on the date of hearing, "(Joe) Berrios sat in the courtroom and repeatedly tried to make eye contact with me. He was trying to intimidate me. I wrote the opinion. I affirmed the lower court, and he has been out for revenge ever since."

Garcia contends that he played the game correctly. "I had backing from (Ed) Burke, (Dick) Mell, (Pat) O'Connor and (Dean) Maragos," he said. "I had enough weighted votes to be slated, but (Burke's) committee then deferred to the Hispanic Caucus, as one of five Appellate Court slots would go to a Hispanic." He said that the caucus consists of eight city committeemen and the Cicero township committeeman.

Garcia said that Berrios then announced that Reyes was the caucus' choice. "The Hispanic wards are in the bottom 10 in the weighted vote," which is based on past Democratic primary turnout, Garcia said. "Yet Berrios was allowed to pick Reyes."

"Absolutely not true," retorted Berrios. "I'm just one of 80 committeemen. Reyes talked to all the Hispanic committeemen and the Hispanic and black caucuses. I only have 4,000 weighted votes. The vote of all the committeemen chose Reyes, not just the Hispanic Caucus."

"Choosing judges should not be based on likability, popularity or politics," emphasized Garcia, who will be demoted to the Circuit Court if he is not elected to the Appellate Court in 2012.

Of the 24 Appellate Court justices in the 1st District, which covers Cook County, 18 are elected and six are Circuit Court judges "assigned" by the three 1st District Democratic Supreme Court justices. The vacancy of any deceased or resigned justice is filled by an appointment made by those three Supreme Court Democrats.

In the 2012 primary, assigned justices Nathaniel Howse and P. Scott Neville, who both are black, were slated, as were appointed justices Maureen Connors and Terrence Levin, who are white. If the latter two lose, they'll be off the bench, while if the former two lose, they'll stay. According to court rules, since Garcia is the senior "assigned" judge, he has to win in 2012 or be demoted.

"Reyes has no (Appellate Court) experience, Garcia said. "Tradition dictates that sitting justices be slated, but Berrios has singled me out for his revenge. It's an unconscionable and intolerable situation."

Outlook: Circulating petitions are Circuit Court judges William Stewart Boyd, Marguerite Quinn, William O'Neal, Pat Sherlock, Kathleen Kennedy and Tom Flanagan, attorney Ellen Flannigan, and appointed Appellate Court justice Mike Toomin. The women will file for four vacancies, giving Connors a pass. O'Neal, who is black, likely will file against Lavin, and Boyd, who is black, likely will file against Reyes. If a single Irish-surnamed woman files in the Garcia-Reyes race, she will be favored.

Mike Tierney, a city plumber known as the "Judgemaker," has built a lucrative cottage industry squiring clueless judicial aspirants through the labyrinth of slating and onto the bench. His clients include lawyers seeking the Circuit Court and Circuit Court judges seeking the Appellate Court. It is a multi-step process, Tierney said.

First, the aspirant needs to be "qualified" by various bar association groups. This is done before the campaign begins. Those found "not qualified" are instantaneously discarded. The party will not slate substandard candidates

Second, the aspirant needs a clout-heavy Democratic committeeman who will sponsor and boost the candidate at the slatemaking session. Illinois Supreme Court Justice Anne Burke, who then was an Appellate Court justice, had the perfect sponsor in her husband, Alderman Ed Burke, who chairs the Democrats' judicial slating committee. She was slated in 2008 and was unopposed. For the Circuit Court and Appellate Court hopefuls, some committeeman has to emerge as a sponsor.

Third, the aspirants have to schedule appointments to meet with Democratic ward and township committeemen, attend party fund-raisers and buy tickets.

Fourth, the aspirant must have fund-raising capacity. The whole premise of seeking slating, as opposed to running independently, is to get the Democratic apparatus behind them. The current cost is $30,000, which is the slated candidate's mandatory donation to the county Democratic Party. That pays for being highlighted on the party's sample ballot, which is mailed once to every county Democratic-voting household, and being on the 400,000-plus fliers which are distributed to every ward and township for dissemination in the precincts.

Fifth, the quantity and identity of the opposition, not its quality, matters. The media do not make endorsements in judicial races, but merely print the bar association ratings. The judicial canon of ethics prevents candidates from articulating positions on future issues or criticizing past decisions of opponents. Hence, campaigns devolve on such factors as gender, ethnicity, race, ballot position and the number of candidates.

Black women with Irish surnames make awesome candidates. White women with Irish surnames are intimidating. In cases involving a multiplicity of men against a single woman or a number of white candidates against a single black candidate, the woman and the black candidate normally win. In a contest with a large field, party endorsement and union backing provide the critical edge.

Sixth, if you don't get slated, don't run anyway. Then you get blackballed. Wait your turn, and if you're slated and lose respectably, you get a second chance.

Three of the seven Illinois Supreme Court justices are elected from Cook County, and all are Democrats. The Thomas Fitzgerald vacancy has drawn four contenders: appointed Justice Mary Jane Theis, Appellate Court justices Joy Cunningham and Aurie Pucinski, and former justice John Tully. The slated Theis has raised $531,000. Cunningham, who is black and who beat the slated white candidate for Appellate Court in 2010, has raised $170,000. Pucinski has wide name identification.

Outlook: With a 4-3 majority, the Democrats can't afford an "unreliable" justice. Issues such as tort reform, redistricting, and -- remember -- getting Rahm Emanuel back on the ballot, flow through Springfield. The party machine and unions will exert a Herculean effort for Theis, who only needs 35 to 40 percent of the vote in a four-candidate race to win, but three white candidates give Cunningham an opening, as do three women for Tully and three Irish names for Pucinski. Theis is no cinch.

Circuit Court (countywide): Ten vacancies exist, and the Democrats slated nine appointed judges, all named by the Supreme Court. They include six whites, two blacks, and one Asian Indian, Hispanic and gay candidate; six are women. At best, half will win.