Pity the conscientious voter trying to decide whether a judicial candidate appearing on the ballot merits his or her support. Particularly in King County, judicial candidates are often unknown to most voters.
Even if a particular candidate is recognizable, voters are unlikely to know much about whether he or she is a good judge or promises to be a good judge. Indeed, voters often have a hazy idea of what makes for a good judge. Is it any wonder that participation levels fall in judicial elections or that observers sometimes suggest the surpassing value of a familiar name?
Spare a thought for conscientious judges, too. They often labor alone and with limited support. Winners and losers issue from their courtrooms in roughly equal number. What feedback they receive is often insincere and unreliable. How do they improve their performance? Indeed, how do they identify what it is that they should be trying to improve?
The answer is to measure judicial performance and then make the results available to both judges and electors. This is not a new thought. More than 30 years ago, Alaska established the first state-sponsored program to evaluate judicial performance. The ABA published a set of proposed guidelines for such programs in the mid-1980s and updated them just last year.1 The first guideline states, "All court systems should develop and implement a formal program for the evaluation of judicial performance."
In 1996, the Walsh Commission recommended that a process for collecting and publishing information about judicial performance be created in this state. Though that recommendation has yet to be implemented, the Washington State Chapter of the American Judicature Society (AJS-WA) has been working since 1999 to develop and pilot test judicial performance measures.
The first challenge for any program that undertakes to evaluate judicial performance is to articulate the qualities that distinguish good judges. AJS-WA determined that these qualities coalesce in five categories: 1) integrity and impartiality; 2) professionalism; 3) legal ability; 4) administration; and 5) communication.
To measure such abstract qualities requires asking concrete questions. For example, does the judge treat all persons fairly, equally and without discrimination based on race, gender, income or any other bias? Does he or she act with patience and self-control? Does the judge exercise sound legal reasoning? Does he or she make decisions in a prompt, timely manner? Are rulings well thought out and clearly presented?
In 2001, AJS-WA conducted a pilot study of a judicial performance evaluation program for Washington Superior Court judges. The study gathered survey data and comments from attorneys, witnesses and jurors appearing before 10 Superior Court judges - four from large counties, four from mid-sized counties and two from small counties. Six of the judges sat west of the Cascades; four haled from the east side of the Cascades. The judges included both beginners with less than one year on the bench and 20-year veterans.
Completed questionnaires were returned by 317 attorneys, 177 jurors and 66 witnesses. The results were encouraging. The evaluators distinguished among criteria and provided feedback that the judges found helpful. The judges who had been evaluated strongly endorsed deploying such a program on a broader scale. A full report on this study was published in the January-February 2004 issue of Judicature.2
AJS-WA pilot-tested judicial performance evaluations for appellate judges in 2002. Two justices of the Washington Supreme Court and two judges in each of the three divisions of the Court of Appeals volunteered to participate. Five of the judges were male and three female.
Attorneys who appeared before a judge and Superior Court judges provided information regarding that judge's performance. The attorneys and the Superior Court judges differed in their assessments, but both could readily distinguish among different criteria. Like their Superior Court counterparts, the appellate judges being evaluated found the process to be informative and beneficial.
If pilot studies have established the feasibility and utility of judicial performance evaluations in Washington, why have such evaluations not become commonplace? As is often the case, the answer comes down to political will and money. To deploy a statewide judicial evaluation program requires support from those who will be evaluated, as well as the bar and lay citizens. It also requires funding and staff support.
Recent events suggest that the will is building - that more and more people recognize the importance of objective and impartial evaluations in assuring the integrity, independence and excellence of Washington judges. The prospect of politicized judicial races, increasingly common in other states, gives this cause more urgency.
Absent reliable information on their performance, judges are vulnerable to attacks from single-issue groups and disappointed litigants. Our voters, and our judges, deserve better. They deserve the best information on judicial candidates and judicial performance that we can gather and disseminate.
Robert B. Mitchell is chair of the Judicial Evaluation Committee of the Washington State Chapter of the American Judicature Society.
1 See http://www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf.
2 See 87 Judicature 168.
