Using Judicial Performance Evaluations to Supplement Inappropriate Voter Cues and Enhance Judicial Legitimacy

Article excerpt

I. INTRODUCTION

Justice John Paul Stevens once noted that "[i]t is the confidence in the men and women who administer justice that is the true backbone of the rule of law." (1) This confidence gives legitimacy to courts at every level. But how is such confidence to be achieved and maintained? How do we instill trust and confidence in the judiciary in those members of the public with little knowledge of the court system or those who attain their knowledge from questionable sources? What kinds of information can be used to counterbalance the denigrating effect of judicial campaigns? This Article suggests that judicial performance evaluations, which meaningfully measure the traits that are essential to good judging, can serve to better inform the public of the role of the judiciary and to promote public trust and confidence in the courts.

The purpose of this Article is not to distill all of the complex factors that enter into measuring the public's perception of state courts. Rather, its purpose is to consider how institutional legitimacy is likely affected by various cues and signals that the public receives about the judiciary. This Article also considers whether critically designed, appropriately administered, and widely disseminated judicial performance evaluations might supplement misleading cues. To that end, following an introductory section on institutional legitimacy, Section III discusses the effects of knowledge, goodwill, and judicial campaigns on the public's perception of the judiciary. Section IV focuses on how the tactics used by judicial campaigns send cues that undermine the public's trust in the judiciary. The last section discusses how more meaningful cues--particularly the results of valid judicial performance evaluation programs--can be used to inform the public and legitimize the judiciary.

II. STATE COURTS: INSTITUTIONAL LEGITIMACY, IMPARTIALITY, AND INDEPENDENCE

The public's trust, confidence, and understanding of the courts all play an essential role in preserving their unique and independent character in our system of government. Like any institution, courts need public support and participation to maintain their institutional legitimacy. (2) Institutional legitimacy has two components: the willingness of the public to accept and defer to the institution's judgment and the willingness of the public to participate in the institution. (3) To the extent state courts are viewed as legitimate government institutions, they remain viable dispute resolution systems, which command respect and deference and help to ensure stability and order. A loss of legitimacy leads to less peaceful dispute resolution and social and economic chaos. (4) Thus, it is essential not only to evaluate the legitimacy of state judicial systems but also to foster it.

Most scholars who seek to measure the legitimacy of court systems focus on three aspects: confidence in the system's lawfulness, perception of the system's impartiality, and assessment of the system's propriety. (5) When the public's opinion of these three aspects of legitimacy is low, the institution's vitality and viability suffer. Conversely, when public perception is high, public trust and confidence is high. Moreover, a confident and trusting public more readily accepts the necessity for an independent judiciary. (6)

While this Article does not undertake an exhaustive review of all factors that affect public perception of the courts, some of the research findings about public perception are highly relevant. Research indicates, for example, that the perception of, and thus respect for, the judiciary is influenced not only by the nature of the outcome of its work--that is, the public's agreement or disagreement with court decisions--but also by the degree to which the system is perceived to be procedurally and substantively fair. (7) Thus, institutions that are perceived to exercise their authority with both procedural and substantive fairness have a higher degree of legitimacy than those perceived to use unfair processes to reach unfair results. …