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More on dissemination of judicial evaluation data

By Steven R. Minor

"With respect to dissemination of information on performance evaluation, two lessons can be drawn. First, transparency about the evaluation process and specific evaluation results benefits both the public and the judiciary. The public benefits because it is able to develop an appreciation for the role of the courts beyond the outcome-based information it is likely to receive from the mainstream media or special interest groups, and can make more informed votes in judicial elections. The courts benefit because increased public awareness of the proper modes of judicial measurement fosters an appreciation for the challenges judges face, as well as the high caliber of judges in the community. It also makes judicial elections less likely to be decided by specific issues or case outcomes, and ultimately creates a public atmosphere more accepting of judicial independence.

The second lesson is that broad dissemination is almost always preferable to limited dissemination. Making information about individual judges available to the public allows ordinary citizens to become more familiar with the judges who serve them, and to appreciate the individual strengths and weaknesses of each judge. Good judges rightly will be praised, and weaker judges will feel appropriate pressure to improve their performance. More importantly, broad dissemination allows the public to evaluate judges on neutral, relevant criteria, rather than having to rely on reports about specific case outcomes. Even summary information about the state of the judiciary as a whole assists the public in understanding the relevant metrics for measuring judicial performance. By contrast, maintaining the confidentiality of performance evaluations fails to educate the public about appropriate measurements, allows less reliable or less comprehensive surveys to fill the void (with potentially unwelcome results), and arouses public suspicion about the real quality of the judiciary.

There is some question as to whether transparency can hinder the self-improvement function of JPE. Some judges, particularly those new to the bench, may benefit from a confidential evaluation early in their service, to allow them privately to improve upon areas of weakness. There may be other occasions in which a judge?s improvement on the bench may be promoted by keeping his individual evaluation confidential. Too much confidentiality, however, may provide less incentive for judges to improve; release of information to the public is a great motivator. Therefore, even if evaluations are occasionally kept confidential, more often than not they should be made publicly available. All states should develop a dissemination strategy that maximizes transparency without sabotaging self-improvement."

Institute for the Advancement of the American Legal System, "Shared Expectations: Judicial Accountability in Context," accessed via the National Center for State Courts Judicial Performance Evaluation Resource Guide.

What I get out of this and like articles is that judicial evaluation when based on the proper criteria should get the widest-possible distribution to promote a more rational and principled discussion of retention issues, as opposed to some of the nonsense we have observed from time to time. The article suggests that judicial independence is most threatened when decisions about judges are made in the absence of informed debate.

In other words, the only people who have to worry about sunlight on these judicial evaluations are the judges whose evaluations are bad and legislators who ignore what the evaluations say. And so, the question arises, why wouldn't the Virginia Supreme Court want the General Assembly to be both empowered - and constrained - in its evaluation of judges by objective information of the best and most relevant kind - in a way that the public also can decide whether the legislators are doing the right thing? One would expect that failure to disseminate information about bad judges mostly has the effect of protecting the employment of bad judges, to the detriment of everyone else. Dissemination of positive information about good judges would make it harder for legislators to fail to keep them.

Jefferson might have agreed that what Justice Brandeis wrote in Whitney v. California - that the remedy for bad speech is more speech - applies as well to judges, but then again he might have said that Federalist idiot John Marshall sucks and we need to run him off the first chance we get.

Full post as published by Southwest Virginia Law Blog on December 16, 2008 (boomark / email).