University of Denver

A Fresh Look at Judicial Performance Evaluation in California

California Courts Review
Founding Executive Director
Professor of Law, New England Law | Boston

Chief Justice Ronald George recently announced the formation of the Commission for Impartial Courts, a new state commission that will study ways to protect California courts from attacks on their independence while at the same time ensuring the impartiality and accountability of all state judges. The establishment of the Commission comes as efforts nationally to politicize and undermine public confidence in the judiciary are pervasive and growing. The “JAIL 4 Judges” initiative that plagued South Dakota in 2006 appears headed for the Idaho ballot in 2008. Alabama, Illinois, and Wisconsin have recently weathered ugly judicial election campaigns fueled by special interest dollars. And the Governor of Missouri (supported by various politically-motivated interest groups) has issued an ongoing public challenge to that state’s nearly seventy-year-old system for selecting appellate judges.

In the wake of these examples, and many more like them around the country, the Commission for Impartial Courts will utilize task forces to examine judicial selection and retention, and public information and education, in California. That examination should also include a careful look at judicial performance evaluation (JPE). JPE is a time-tested method of evaluating judicial performance along apolitical measures, such as freedom from bias, temperament on the bench, and communication skills. Now in use in nineteen states and under consideration in several more, a well-designed JPE program has the benefit of informing both the public and the courts about the strengths and weaknesses of individual judges, and educating the public about the role of judges generally.

And perhaps of more immediacy, JPE has the potential to help dissipate attacks on judicial impartiality and independence by focusing the public on process-oriented judicial skills and away from specific case outcomes. It is no coincidence that the most successful efforts to target judges for removal from the bench in the past twenty years – including the targeting of three supreme court justices in California in 1986 – came in states that did not have JPE programs, while states with JPE programs rarely see focused efforts to remove a judge during a retention election.