It should surprise no one that judges are receiving increased public scrutiny. After all, most of the once-admired political, social, and economic institutions of the United States have fallen from public grace like so many leaves in the fall. Confidence in public institutions, particularly in legislative and executive branch bureaucracies, is disturbingly low. In response, supporters of the Reinventing Government movement have sought, among other goals, to elevate the image of public service through gains in efficiency and responsiveness.
Performance measurement and customer-focused government are two of the many approaches that have been developed. If executive and legislative branch personnel are to be held to certain public performance standards, then it is but a small step to include the judiciary within the purview of accountability. Additional impetus for an evaluative examination of the judiciary has emerged from media coverage of court spectacles such as the O.J. Simpson murder case and the Oklahoma City bombing trials, as well as from the popularity of television programs such as Peoples' Court and Court T.V.
Initiated in Alaska in 1976, judicial performance evaluation (JPE) is a relatively recent phenomenon that has been established or is under development in nearly half of the states. JPE has received technical support and encouragement from the American Bar Association's Special Committee on the Evaluation of Judicial Performance (1985) which issued guidelines for evaluating judicial performance and from the National Center for State Courts which had helped distribute information and other assistance to the states on JPE methods and implementation.
The specific approach to appraising judges varies as to goals and purposes among jurisdictions but two primary objectives prevail: 1) to educate voters or appointing authorities, such as the governor, who are charged with the retention or reappointment of judges and/or 2) to improve the performance of sitting judges. States also vary in which aspects of performance are being scrutinized and the evaluative techniques or method employed but all JPE states must necessarily confront the critical and competing values of judicial independence versus judicial accountability.
This article discusses the diffusion of JPE in the states, briefly assesses it in the context of professional performance appraisal, and examines some of its most important positive and negative aspects.
EVALUATION IN THE STATES
The formal assessment of judges' performance is largely a state phenomenon of the past two decades although JPE programs have been established in some municipal court systems (e.g., Dallas) and in the Navajo Nation courts. Approximately 23 states had some sort of JPE program in place or under development in early 1998. Written information was available on 17 of them, including all fully operational state programs. The following description and analysis is based on published reports by JPE states and on articles and reports in the professional legal literature.
Retention Election States. Five states with merit plan or "Missouri Plan" judicial selection systems have adopted JPE programs with the primary purpose of educating voters before judicial retention elections in which they are faced with a typical choice of "shall Judge X be retained in Office?" (Table 1). In all 19 merit plan states, retention elections have been characterized by low voter turnout, blamed at least partly on apathy and ignorance as to the quality of Judge X's performance. Little non-biased information has been available on the judge's voting record in most states.
Surveys of attorneys conducted by the state bar association are made publicly available in some states but such polls may suffer reliability and validity problems as well as a lack of credibility with the voting public. Judges seeking reappointment to the bench in merit plan states are constrained by ethics and information dissemination costs from educating voters as to their records. …