New York has experienced a loud and tumultuous decade with respect to the selection of its state and local judges. In 2006, the system of partisan nomination of candidates for election to the trial court bench was declared unconstitutional on First Amendment grounds, (1) causing the state legislature to argue over the future of the selection process until the United States Supreme Court reversed the decision in January 2008. (2) At about the same time, studies revealed that the voting public knows very little about the judicial candidates on the ballot, causing actual voter turnout in most judicial elections to hover near twenty percent. (3) And just recently, the nominating process for an opening on the state's Court of Appeals, spurred by the retirement of Chief Judge Judith Kaye, was criticized for producing a group of finalists that lacked sufficient diversity. (4)
These developments share two common threads. First, and most obviously, they call attention to the importance of establishing a credible, fair, and trusted judicial selection process for every court in New York State. But as importantly, these events underscore the need for decision-makers and the public to have complete, reliable, and relevant information about judges and judicial candidates. Informed voters are more likely to cast ballots in judicial elections, and to make better choices when they do. Informed nominating commissions are more likely to present slates of quality judicial nominees. And an informed public should have greater confidence in its judges.
Unfortunately, existing mechanisms in New York lack both the depth and breadth to provide information on judges and judicial candidates in a truly meaningful way. This need not be the case. Across the country, states have adopted judicial performance evaluation (JPE) programs that provide continuous, comprehensive assessments of the skills that each judge or judicial candidate brings to the bench. (5) In this essay, we describe how JPE programs work, consider what lessons those programs offer for judicial screening and judicial selection in New York, and explain how both the citizens and judges of New York would benefit from an official, comprehensive JPE program.
I. THE VALUE OF JUDICIAL PERFORMANCE EVALUATION--A NATIONAL PERSPECTIVE
JPE programs began in the mid-1970s as a mechanism for reviewing sitting judges' skills and abilities related to the process of adjudication. (6) Prior to that time, the only organized evaluations that existed in any jurisdiction were bar polls, which ran the risk of devolving into popularity contests or political gauntlets. (7) Rather than address specific case outcomes, which are properly the province of appellate courts or policymakers, JPE programs focus on qualities that would be expected of any judge, such as even-handed treatment of litigants,s To date, approximately twenty states and the District of Columbia have established a formal program to evaluate sitting judges, (9) and several more are on the way. Since 2007, state-authorized JPE programs have been introduced in Illinois, Kansas, and Missouri, pilot programs have been run in North Carolina and Washington, and JPE has been the subject of careful and intense study in Minnesota and Nevada. (10)
While the precise format of JPE programs varies by state, the most comprehensive programs all feature five elements: (1) the evaluation of sitting judges at regular intervals; (2) evaluations conducted by an independent, balanced commission; (3) evaluation criteria related strictly to the process of judging rather than individual case outcomes; (4) collection of a broad and deep set of data on each judge; and (5) public dissemination of evaluation results. (11) By "independent, balanced commission," we mean a commission composed of both attorneys and non-attorneys, appointed to staggered terms by different branches of government or segments of the community. Studies have shown that the input of lay citizens in the evaluation process is valuable both for the credibility of the evaluations--after all, judges are ultimately accountable to the public they serve--and for the citizens themselves, who gain a deeper appreciation of the challenges judges face. …