The RELATIONSHIP between Judicial Performance Evaluations and Judicial Elections
Brody, David C., Judicature
A study in Washington state suggests evaluation programs can be effective in informing voters, helping judges, and promoting judicial independence.
The quality of our justice in America patently hinges, in large measure, on the quality of our judges."1
The human dimension judges bring to the bench, with diverse judicial philosophies and personalities, is an asset to the American system of justice. It is the public's faith in the wisdom, common sense, and integrity of individual judges that is the backbone of the judiciary. Unfortunately, these very qualities can prove a liability when it comes to judicial elections.
Thirty states use popular elections (either partisan or non-partisan)2 to select at least a portion of their judiciary, not to mention the large number of states that use retention elections as part of a merit appointment system. While selecting judges through popular elections does make a judge accountable to the people, it also presents many dangers. It can make judges shy away from making decisions and acting as they would without the presence of electoral pressures. Making anti-majoritarian decisions, developing innovative practices and procedures, and standing by one's beliefs-all qualities we want from our judges-can make a judge liable to electoral challenges based on unfair characterization, innuendo, and attack by special interests. This fact, when coupled with the dearth of information provided to voters in judicial elections, has been the cause of great concern across the nation for many years.
In an effort to combat this situation, since the 1970s states have been developing and implementing programs to evaluate systematically the performance of both appellate and trial court judges. These programs, which are growing in use in states that require judges to stand for retention elections, are state sponsored and administered and are generally designed not only to offer the public information for use in voting in judicial elections, but more importantly to provide feedback to sitting judges for self-evaluation and improvement. Whether the programs are designed to educate individual judges to foster self-improvement, or to inform the public to increase participation rates in judicial elections and trust in the court system, such programs have the potential to be extremely valuable both to a state's judiciary and to its citizenry.
Unfortunately, to date not a single state whose judiciary is selected through partisan or non-partisan elections undertakes judicial performance evaluations to inform the public about the quality of work conducted by state and local judges. Washington state, which selects judges through non-partisan elections, falls under this rubric. Despite its progressiveness in many areas, Washington state does not operate a government-sponsored judicial performance evaluation (JPE) program.
In 1999, the Washington chapter of the American Judicature Society established a committee to design and test a judicial performance evaluation program for superior court judges that would foster judicial self-improvement and provide information to voters in judicial elections. The goal was to develop, implement, and analyze procedures and instruments that could be used in a JPE program in a state with an elected judiciary. This article presents the results of this pilot study.
Performance evaluation history
The first state-sponsored judicial performance evaluation program was established in Alaska in 1975. In 1985, the American Bar Association developed a set of proposed guidelines for the implementation and operation of such programs. Since that time, dozens of states have instituted JPE programs with varying components and purposes. While JPE programs are relatively new, several have been found to serve the purpose for which they were designed and do not have a negative impact on judicial independence or behavior.3
Shortly after the ABA developed its guidelines, discussion began in Washington state about the development of a JPE program. …