Capitol Fax.com - Your Illinois News Radar

Kilbride replacement process far from clear

Posted in:

Illinois

* Sarah Mansur at Capitol News Illinois explains the known replacement process for Justice Tom Kilbride. But there’s not much of a precedent for replacing a Supreme Court justice, and the court itself has opaque procedures (to say the least)…

Under article 6, sections 3 and 12, of the Illinois Constitution, the state Supreme Court must appoint an interim justice to fill the vacant seat, by a vote of at least four justices, until the next election in 2022. […]

The constitution states that the “person appointed to fill a vacancy 60 or more days prior to the next primary election to nominate Judges shall serve until the vacancy is filled for a term at the next general or judicial election.”

Both Kilbride and Justice Lloyd Karmeier, who is retiring, have terms that end on Dec. 6.

If the court meets to appoint a justice before then, the two outgoing justices could be involved in selecting the temporary successor, said Ann Lousin, a constitutional law professor at the University of Illinois Chicago John Marshall Law School.

“If [Kilbride] does sit in on the meeting, he would have a say in his successor,” Lousin said. “He would be one vote out of seven.”

* Ray Long…

Now that Kilbride has lost, the court could seek an interim appointment until a replacement is elected in 2022. It’s unclear to court watchers whether Kilbride would have a vote on an interim justice to take his spot. Kilbride’s term ends in December.

One scenario Republicans envisioned is that the six remaining justices ― three from each party ― deadlock on a temporary Kilbride replacement. That would keep the court evenly balanced until the next election in 2022, a race in a nonpresidential year that Republicans hope to win.

posted by Rich Miller
Thursday, Nov 5, 20 @ 9:14 am

Comments

So they might have just spent a boatload to to have two Democratic justices appointed?

Comment by Candy Dogood Thursday, Nov 5, 20 @ 9:21 am
There’s no chance as in zero that the Court would not appoint an interim Justice. If that’s the GOP’s plan, its terrible.

Comment by Paddyrollingstone Thursday, Nov 5, 20 @ 9:22 am
What is to stop the Supreme Court from appointing Kilbride? He could run again in 2022.

Comment by Former Local Prosecutor Thursday, Nov 5, 20 @ 9:26 am
I wonder how many voters, voted “no” for the reason I did. I did not vote with regard to the political rhetoric surrounding Madigan at all. I voted no because I am convinced Supreme Court Justices should have term limits. Twenty years seems more than enough.

Is there any data about Illinoisans who want term limits for Supreme Court appointments?

Comment by H-W Thursday, Nov 5, 20 @ 9:28 am
=== If that’s the GOP’s plan, its terrible.===

Get a load of the rest of what they’ve done. They literally hosted super spreader events on election night.

Comment by Candy Dogood Thursday, Nov 5, 20 @ 9:34 am
=== What is to stop the Supreme Court from appointing Kilbride? ===

Nothing.

If he had received less than 50% of the vote I would say it was a terrible idea.

But he got well more than 50% of the vote so it is at least worth considering.

Although under that scenario I think he should vow not to run in 2022.

What the justices have to ask is whether there is someone else in the field they personally believe is more qualified than Kilbride.

A unanimous vote to fill both vacancies would be a nice shift from the rancor of the last six months.

Comment by Thomas Paine Thursday, Nov 5, 20 @ 9:41 am
Justice Kilbride, while an excellent jurist, is up in years, and would likely retire in the near future, as will Justice Karmeier. The retention merely moves up the timetable.

Comment by Ares Thursday, Nov 5, 20 @ 9:42 am
Only Justice Kilbride’s seat will need to be filled. Justice Karmeier’s seat is being filled by Justice Overstreet–who won Tuesday’s election. Justice Karmeier is retiring the day prior to Justice Overstreet gets sworn-in.

Comment by Abe's Colleague Thursday, Nov 5, 20 @ 9:50 am
I have read both articles and Article VI of the constitution several times. This seems like it could be a mess in my opinion as there is not direct guidance on a failure to be retained. Section III says the court shall have seven Justices and then lays out from where. But it says only four are needed for a quorum and four for a concurrence vote. This tells me they do not have to appoint an interim justice for the court to do business. The first article Rich listed said they MUST appoint. Section XII lays out the opportunity for the court to appoint a justice to fill the term until the next General Election. But they use the term MAY appoint. Here is where it gets murky. Nothing in the Constitution says Kilbride cannot be part of the appointment process if they meet prior to the end of his term or “the first Monday in December”. After December 7th there will only be six justices and four of them must agree on an interim appointment should they want to make an appointment. Someone far smarter than me could opine on whether there are any recusal standards Kilbride may have to follow should he still be in office and the Court meets to select an interim appointment. I also think they may appoint Kilbride as the Constitution is silent on that issue. But here he most certainly has a recusal standard he must follow.

Comment by Nagidam Thursday, Nov 5, 20 @ 9:53 am
It’s strange that people talk about term limits where there is nothing in the state or federal constitution regarding term limits for Judges. These are a lot times the same people who like the electorial college becuase it is in the constition. I can go on. People just look the the parts of the constitution they like and ignore the rest.

Comment by Publius Thursday, Nov 5, 20 @ 9:54 am
The Illinois Supreme Court likes to give itself flexibility to act as it sees fit. It has Administrative Rules that could (and should) cover this situation, but don’t.

Comment by Keyrock Thursday, Nov 5, 20 @ 9:59 am
*unfilled

Comment by Is it 2021 yet Thursday, Nov 5, 20 @ 10:00 am
Question: If the justice is still serving his/her term, is there really a vacancy?

Comment by Anonymous Thursday, Nov 5, 20 @ 10:09 am
It would be odd indeed if Kilbride were to vote on the replacement to fill the vacancy. There is no vacancy until the end of his term.

Comment by duck duck goose Thursday, Nov 5, 20 @ 10:42 am
Is there anything in statute about this?

Comment by Precinct Captain Thursday, Nov 5, 20 @ 10:49 am
@Duck Duck Goose -

You are arguing a Court composed of 5 members should vote to fill both vacancies?

Comment by Thomas Paine Thursday, Nov 5, 20 @ 11:00 am
@Thomas Paine

===You are arguing a Court composed of 5 members should vote to fill both vacancies?===

There are no vacancies until December 7th. At that point, there is a potential for a vacancy with Kilbride losing his Retention election. Overstreet will be sworn in. The Court may try and fill Kilbride’s vacancy between now and then but if they picked someone they would start Dec. 7th.

Comment by Nagidam Thursday, Nov 5, 20 @ 11:07 am
Kilbride could participate in that meeting, but he won’t. It doesn’t look for anyone for him to do that and the cordially of the court makes it possible for him to share his view without that. They won’t give a hoot about a R or D party desires for filling the vacancy. To the extent to which they care about what the parties want, their desire to be viewed as partisan creatures (which is zero) has been substantially reduced by a recent event - the partisan ouster of Kilbride.

Comment by Anonymous Thursday, Nov 5, 20 @ 11:26 am
It appears that neither judge may sit on the appointment panel, because Section 12(b) clearly is written to allow a replacement appointment only AFTER the judge is off the bench: “The office of a Judge shall be vacant upon his death, resignation, retirement, removal, or upon the conclusion of his term without retention in office. Whenever an additional Appellate or Circuit Judge is authorized by law, the office shall be filled in the manner provided for filling a vacancy in that office.” To give effect to the plain and ordinary meaning of the statute and the word ‘retirement’, one cannot be retired until the day after their last day of work, so neither judge can vote on their replacement. Nor can the projected opening be filled before the last day of work, because there is no opening to legally fill.

Comment by thisjustinagain Thursday, Nov 5, 20 @ 12:49 pm
Time to change the 60% retention requirement to 50% plus 1.

Comment by d.p.gumby Thursday, Nov 5, 20 @ 2:56 pm
How about MJM daughter……………..

Comment by bear 3 Thursday, Nov 5, 20 @ 3:24 pm
Justice Kilbride is an excellent justice and a good man and deserved better treatment, but politics ain’t beanbag.

Comment by The Way I See It Thursday, Nov 5, 20 @ 3:27 pm
Kilbride is too much of a fair and impartial judge (and a nonpolitical gentleman) to accept an interim appointment to the same seat the voters chose not to retain him to. But, the Court often appoints lawyers and judges to fill upcoming vacancies. I think the court will select someone next week when they are in session. It will probably be an appellate judge from the Third District, such as Mary K. O’Brien. The court won’t care if he or she is a Democrat or a Republican.

Comment by Not So Innocent Bystander Thursday, Nov 5, 20 @ 3:36 pm
== - Ares - Thursday, Nov 5, 20 @ 9:42 am:

Justice Kilbride, while an excellent jurist, is up in years, and would likely retire in the near future, as will Justice Karmeier. ==

Kilbride is one of the youngest members of the Supreme Court.
Karmeier did retire.

Google is your friend. Use it.

Comment by southsider Thursday, Nov 5, 20 @ 3:47 pm
Not much of a fan of Kilbride. Having known him well, he was, and is, a political creature. While brighter than Anne Burke, I can think of many jurists better qualified to serve on the highest court.

Comment by Just Another Anon Thursday, Nov 5, 20 @ 3:55 pm