No one's judging Illinois Supreme Court's latest resign-and-replacement shuffle

Remember the national uproar last November when U.S. Rep. Chuy Garcia bowed out of his reelection race at the last minute and quietly passed petitions to put his chief of staff Patty Garcia on the ballot? We saw a lesser, but still quite palpable mass grumbling when state Rep. Marty Moylan, D-Des Plaines, did the same that month for his chief of staff Justin Cochran, who was subsequently appointed to the House by the district’s Democratic township committeepersons after Moylan resigned.

But you didn’t hear any disapproval last week when Illinois Supreme Court Justice Mary Jane Theis simultaneously announced her retirement and the appointment of Appellate Court Justice Sanjay Tailor to fill her seat until the 2028 election.

This sort of resign-and-replacement move is far more common at the Illinois Supreme Court than in any other body of government.

During the 21st century, six Illinois Supreme Court justices have won open seat elections, but eight Illinois Supreme Court justices were appointed to fill out terms of retired justices before an election, including Tailor, according to research by my associate Isabel Miller and me.

Theis herself was appointed to replace retiring Chief Justice Thomas Fitzgerald in 2010, and then ran as an appointed incumbent in the 2012 campaign cycle. As with her predecessor Fitzgerald, Theis had finished serving a turn as chief justice before she decided to step down. She could have quit before the candidate filing period began last fall, but she waited until long after the ballot was set before making her decision.

Now, I happen to think very highly of Theis. I don’t agree with her all the time, but that’s not a requirement. She’s been a solid jurist and won a Capitol Fax Golden Horseshoe Award last month. Her handpicked replacement seems robustly qualified to serve.

But this constant resign-and-replacement scheme by the state’s top court is really getting old.

The tradition at the top court is to allow retiring justices to select their replacements. The rest of the justices then go along as a courtesy.

To their credit, no real duds have ever been appointed. And since justices live and dine together in a dormitorylike setting during their Springfield sessions, I can understand why they would want to screen their roomies.

Still, it’s not like the people who won open seat races were creeps. Far from it. Justices Fitzgerald and Tom Kilbride both won open seats in 2000. Justice Lloyd Karmeier won an open seat in 2004, and Justice David Overstreet won a similar battle in 2020. Justices Mary Kay O’Brien and Elizabeth Rochford won hotly contested open seat races in 2022. Justice Bob Thomas defeated appointed Justice S. Louis Rathje in the 2000 Republican primary.

Again, the appointees were/are pretty darned good as well. Justices Rita Garman, Anne Burke, P. Scott Neville, Joy Cunningham and Lisa Holder White were the other justices appointed before an election during the 21st century aside from Rathje, Theis and Tailor.

Soon-to-be Supreme Court Justice Tailor is a good example of the court system’s appointment process. Tailor was appointed as an associate judge in Cook County in 2003, and won his first actual election as circuit judge in 2022. Almost ever since, he has served as an appellate justice “by assignment” to the 1st District Appellate Court without an election. According to all accounts, he’s a very good judge. This is in no way a knock on the guy. All I’m trying to do here is show what the system actually looks like.

The Illinois Constitution does allow the General Assembly to set up a replacement procedure, so it could act if it wanted to.

“A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law,” declares Article VI, Section 12(c) of the state constitution. “In the absence of a law, vacancies may be filled by appointment by the Supreme Court.”

I kinda doubt the Legislature will ever tackle this subject. The top court has long avoided interfering with internal legislative matters. Stepping on the judicial branch's vast patronage powers might provoke a retaliation.

Even so, legislators can’t say their hands are tied. And, frankly, neither can the Supreme Court. The justices ought to establish a much more open and transparent replacement process.

Perhaps the news media should cover these resign-and-replacement schemes like every other governmental branch. Maybe injecting a little shame into this process could work.

The judicial branch is too heavily controlled by too few people without any guaranteed transparency.

Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.