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.
- Keyrock - Tuesday, Jan 20, 26 @ 8:55 am:
Thanks for this excellent column.
- Excessively Rabid - Tuesday, Jan 20, 26 @ 9:32 am:
Thought provoking column. The only good I can see about this practice is if it heads off interest groups trying to buy SC elections.
- Not So Innocent Bystander - Tuesday, Jan 20, 26 @ 9:39 am:
Great article, but you forgot to include Justice Philip Rarick who was appointed to replace Moses Harrison in 2002, but had to drop out of the 2004 race due to health issues. That resulted in the open election that Lloyd Karmeier won.
https://en.wikipedia.org/wiki/Philip_J._Rarick
- Carpe GM - Tuesday, Jan 20, 26 @ 9:52 am:
Isn’t this kind of retire-early-and-handpick-a-replacement practice very common in the lower rungs of the judicial system too?
- Travel Guy - Tuesday, Jan 20, 26 @ 9:54 am:
==To their credit, no real duds have ever been appointed.==
Things like this aren’t a problem until they are. I never would have imagined that republicans would turn Washington into an inexperienced laughingstock, but here we are.
- Sue - Tuesday, Jan 20, 26 @ 9:56 am:
As bad as this practice might be- Madigan being allowed to rig the electoral map effecting S CT judicial races a few years back was equally bad or perhaps worse as the Democratic majority on the Court gave it it’s approval
- Steve - Tuesday, Jan 20, 26 @ 10:03 am:
This is a good column. Sadly, most Illinois voters don’t really care. So, that’s that.
- @misterjayem - Tuesday, Jan 20, 26 @ 10:18 am:
“rig the electoral map effecting S CT judicial races”
You misspelled “redistrict for first time in generations.”
– MrJM
- Big Dipper - Tuesday, Jan 20, 26 @ 10:31 am:
I think when they make circuit court appointments the process varies by Justice. Some just announce a name and others have committees help them with selection.
- Shytown - Tuesday, Jan 20, 26 @ 10:53 am:
I don’t disagree with you in principle here as any handing down or handing over of a position from one to another absent an electoral process (or another unimpeachable process) is a wrong, but the fact that those in Garcia‘s camp are now decrying this is also pretty ironic.
- low level - Tuesday, Jan 20, 26 @ 11:21 am:
Thank goodness the Democrats drew new districts. It was long overdue. The Republican complaints shouldn’t be taken seriously.
- Rich Miller - Tuesday, Jan 20, 26 @ 11:23 am:
===but you forgot to include===
We didn’t forget. He wasn’t easily classifiable, so we just left him out of the data.
- Rich Miller - Tuesday, Jan 20, 26 @ 11:25 am:
===but the fact that those in Garcia‘s camp are now decrying this is also pretty ironic===
Where are they decrying this?
- JB13 - Tuesday, Jan 20, 26 @ 12:06 pm:
– it heads off interest groups trying to buy SC elections –
For sure. I mean, just look at how much money the governor, Illinois trial lawyers, and Planned Parenthood dumped into the race in support of Rochford and O’Brien, after Democrats unconstitutionally prohibited anyone from outside the state from donating to judicial candidates to offset their money advantage.
But you did mean, *those* interests, too, right?
- Demoralized - Tuesday, Jan 20, 26 @ 12:52 pm:
==after Democrats unconstitutionally ==
You don’t wear a black robe so your claims of “unconstitutional” don’t matter. You can have an opinion. But that’s all it is and util a judge says it’s unconstitutional then it’s not.
- North Side sox fan - Tuesday, Jan 20, 26 @ 1:40 pm:
It’s not just about supreme court vacancy appointments. The same patronage system exists with regard to appellate and circuit judge seats. Sometimes these are purely merit driven, and sometimes they are driven by other things such as who walked in parades for so-and-so, who is allied with this other person, etc.
Further, there might be great candidates who are NOT appointed for various reasons, but they want to run for the seat. For example, an associate judge would likely not accept an appointment to the appellate court in a competitive race because, if they lose the appellate court race, they are no longer a judge. It can be an untenable risk, depending on the circumstances.
And, no matter how qualified the appointee is or isn’t local political parties generally line up in favor of the appointed (or anointed) person. This dissuades good candidates from running because they know it will be an uphill battle.
- low level - Tuesday, Jan 20, 26 @ 1:54 pm:
==For sure. I mean, just look at how much money the governor, Illinois trial lawyers, and Planned Parenthood dumped into the race==
These so called “tough conservatives” sure do complain a lot. Wow. Get help. The left is living in your head rent free, friend.
- Three Dimensional Checkers - Tuesday, Jan 20, 26 @ 2:00 pm:
It is probably hard for the public to internalize that the judiciary is a patronage system more than the legislature is a patronage system, and thus hard to shame the judges.
Madigan lives rent free in people’s heads even as he lives rent free as a guest of the government.
- Rich Miller - Tuesday, Jan 20, 26 @ 2:07 pm:
===The same patronage system exists with regard to appellate and circuit judge seats===
Tell me you didn’t read the column without telling me.
- Yellow Dog Democrat - Tuesday, Jan 20, 26 @ 4:55 pm:
It’s not that I don’t care, its just that on my list of “How our Democracy is Failing in 2026,” Illinois Supreme Court appointments falls pretty low.
Appointments are an insulation from partisanship. At the state level its an insulation from the Dem v GOP partisanship that infected the races of Justices Rochford, O’Brien, Kilbride and Karmeier. In the first district, its an insulation from the racial/intra-party Democratic party battles.
That is probably in the best interests of The Court and the judicial branch right now. It might also mean that the Court can operate with a degree of collegiality and cooperation you won’t find in the legislature or Congress, and I think that’s a good thing as well.
- Retired SURS Employee - Tuesday, Jan 20, 26 @ 8:38 pm:
I apologize for the late comment, as I am vacationing in a time zone behind CST. As a retired attorney, I fully agree with Rich’s newspaper column. While the beneficiaries of previous appoinmnents are well qualified and they have all been excellent Justices, the fact remains that the current practice of appointment and then election does not serve the public welfare. It smacks too much of a closed system based upon who knows the right people.
- low level - Tuesday, Jan 20, 26 @ 10:19 pm:
YDD makes excellent points as usual. Well said.