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June 24, 2014

Judging the performance of judges – a US approach

There is no doubt in my mind that electing judges is a bad idea.  Most people in the criminal justice system in US agree that those voting have no idea how to judge which judge to vote for, particularly as the latter are not party political.  As a result, people can end up voting for individual judges because they know them personally or because they have seen their advertisements.  Most potential voters will not have seen these judges in action or have any objective information by which to select one over another.   But a few states have introduced systems to help the voters decide.  Colorado has a well established Commission of Judicial Performance (6 non lawyers and 4 lawyers) which organises a comprehensive evaluation of each judge. “The trial judges’ evaluations are developed through survey questionnaires completed by a random sample of persons who have appeared in court before the judge: attorneys (including prosecutors, public defenders, and private attorneys), jurors, litigants, law enforcement personnel, employees of the court, court interpreters, employees of probation offices, employees of local departments of social services, victims of crime, and appellate judges. In addition, commissions consider a self-evaluation completed by the judge, courtroom observations, review of decisions, review of judge statistics such as relevant docket and sentencing statistics, and a personal interview with the judge” .  The commission gives advice to the electorate on each judge – retain/do not retain/no opinion.  The descriptions of each judge’s feedback are an amazing read .  Each one details the judge’s best and worst points and whether the lawyers surveyed thought he/she should be retained….every single result of the evaluation survey is published.

Even judges who are not elected are subject to evaluation in many states and districts.  Many US judges have fixed tenure and the renewal of their tenure may rely on evaluation by the local branch of the American Bar Association, which represents both prosecution and defence lawyers.  The American Judicature Society has analysed all the approaches of different states.  Most, it has to be said, don’t evaluate judges performance, but an impressive minority do.  And most evaluation commissions are dominated by non-lawyers, though lawyers are always represented.

A more informal approach is represented by the Robing Room, a website enabling any lawyer to rate any judge.  A list of the top and bottom ten judges in the country is on the front-page.  I have no idea how popular or used this site is, but its very existence shows a thirst to give feedback on judges.  Whether they welcome it is another matter.