Justice Sanders’ Rating Controversy
I have read the letter in the September Bar Bulletin from Justice Sanders and the reply from Alice Paine. I have also reviewed the rating criteria the committee says it uses. It does seem to me that the most reasonable way to determine whether or not Justice Sanders is competent to be a judge is to review his record as a judge. Doing that, reviewing the opinions he has written, most of which I have read, I cannot understand how he fails to meet any of the criteria to the highest degree. I do understand than many people disagree with him on many issues. So do I. I do not disagree with him in his insistence that the government must scrupulously obey the law when it messes around with the rights of the people.
If the bar has some secret information that Justice Sanders is in the pay of the mafia or suffers from Alzheimer’s Disease it should publish that information. Otherwise one is left with the decided impression that he has been unfavorably judged as politically incorrect.
I read with interest Justice Sanders’ letter that appeared in the September 2004 Bar Bulletin. Justice Sanders called the KCBA judicial ratings a reflection of “the political and social values, attitudes, and beliefs of those on the rating committee.” He participated in the KCBA rating process previously, but was “assaulted with unverified, untrue, and/or irrelevant anonymous personal anecdotes” from “some politically correct checklist.” His request to state his own case was refused by the KCBA.
Clearly, ratings processes for judicial candidates can help voters vote in an informed fashion. But voters can’t be expected to form their opinions by reviewing a candidate’s public record. In most if not all cases that would be unwieldy. Nor do public record documents alone show a candidate’s skills, commitments, views, and integrity. On the other hand, witnesses of a candidate’s actions or statements may be in a unique position to provide invaluable insight into that candidate. What they witnessed may or may not be a part of a public record, but just like a picture tells a thousand words, so may a brief vignette. Such should be a part of any judicial evaluation.
Justice Sanders’ letter highlights the need for a judicial candidate evaluation process that truly and accurately does a good and fair job in assessing a candidate’s integrity and skills. Justice Sanders is right. If the KCBA chooses to undertake a judicial rating process at all, it must be fair. It must be based on important, relevant information about a judicial applicant’s integrity. It must invite, encourage, and elicit candid information from people. Motives and agenda of the providers of this information must be tested rigorously. Integrity ratings require a forum where such comments can be freely given, but the process has to weed out the comments of people with only an axe to grind.
Justice Sanders raises a fundamental question that must not be overlooked and that the KCBA must now answer: is the process fair? KCBA Executive Director Alice Paine’s response starts to explain the process, but what happened to Justice Sanders is largely unexplained. Justice Sanders pointed out that detractors were allowed to use the process to voice their comments by gossip, rumor, and hearsay, but he was not even allowed to explain his side of the story. If someone has a grudge, it should be revealed and debated openly. Justice Sanders or the person being subjected to the rating is entitled to know what is being said, and should be able to respond.
To begin to answer the question of whether the KCBA rating process is fair, perhaps it can be compared with an established rating system like the Martindale-Hubbell attorney rating process. The Martindale-Hubbell ratings assess attorneys by eliciting comments from peers. Martindale-Hubbell’s rating system appears to have withstood the test of time, and I am told it has been used for more than 130 years. It may serve in some respects as an example for the KCBA to emulate, if it has not been looked to already. Incidentally, as an attorney, Justice Sanders is rated AV by Martindale-Hubbell, the highest rating one can hope to achieve.
But attorney rating processes can only provide so much guidance: rating judges is different from rating attorneys. The main reason, as we all know, is that attorneys practice before judges and justices. So for example, if Justice Sanders or any other sitting justice or judge has any detractors, and those detractors practice before that judicial officer, that detractor would be loathe to bring such comments publicly. But a rating process must guard against discouraging candid comments. It has to in fact do the opposite and encourage that open flow of information. Such information could be important, indeed, crucial, to evaluating a candidate for any judicial post. Nor does it make a difference whether a candidate is or is not presently a judge or justice. If a person who is not presently a sitting judge or justice has detractors, his or her peers too might also be loathe to freely comment because of the fear that they one day could practice before that candidate if later elected. A rating process that fails to consider this reality is itself a failure.
Justice Sanders’ revelations about the KCBA rating process require that we all evaluate the KCBA rating process itself, and the KCBA should do so at once. Justice Sanders is one of the highest rated attorneys in our state. He is right that we need a fair judicial rating process and that it must afford and encourage people and counsel to speak openly and freely about one’s qualifications for any judicial position. If the KCBA rating process rates integrity, that very process itself must reflect and exceed our own hopes for integrity. Justice Sanders is right to point out that the KCBA rating process must employ all of these principles. Hopefully, that process already does. But Justice Sanders’ letter requires that we make sure it does by now re-assessing it at once. If the existing rating process is found to lack the integrity it seeks to ascertain, it must be rescinded immediately and not be used again until it does.
