ABA Offers New Way to Judge the Judges
by Leonard Post, The National Law Journal
05-05-2005

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The American Bar Association has revised its guidelines for evaluating judges in a move to defuse ideological litmus tests that fuel attacks on judges and could potentially threaten judicial independence.

The ABA's old guidelines were meant mainly for self-improvement. They are now also aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact.

All that's left is for states to adopt the new guidelines.

"To the extent that public interest groups evaluate judges using their own standards and criteria, there's a concern that the judiciary will not be rated on their ability to follow the rule of law, but rather on their personal ideologies or preferences," said Cheryl Cesario, who chaired the performance evaluation committee of the Lawyers Conference of the ABA Judicial Division, which drafted the guidelines.

Some judges, such as Florida Circuit Judge George W. Greer, who allowed the removal of persistent-vegetative Terri Schiavo's feeding tube, have been subject to scathing personal attacks when making controversial decisions. Fueling the fire, a U.S senator recently asserted that courthouse violence may be linked to public anger that builds because judges make politically charged decisions for which they are "unaccountable."

"We're hoping that states will look at the suggested guidelines and use them in developing their own evaluation systems," said Cesario, assistant director of the Center for Advocacy and Dispute Resolution and an adjunct professor at Chicago's John Marshall Law School.

The authority to develop and implement judicial evaluation systems should reside in each state's highest court, say the guidelines. The ABA guidelines have been referred to the Conference of Chief Justices' Professionalism and Competence of the Bar Committee, which will meet in July at the chiefs' annual meeting in Charleston, S.C., said Mary McQueen, president of the National Center for State Courts.

Six states that have judicial retention elections publicize their judicial evaluations: Alaska, Arizona, Colorado, New Mexico, Tennessee and Utah. About a dozen other states use evaluations solely for self-improvement purposes, according to the Drake University-based American Judicature Society.

But many question whether evaluations can be used in contested elections.

"No one's figured out a way to use them in competitive elections," said Malia Reddick, a political science professor at the University of Missouri-Columbia and the ABA committee reporter. "Because it puts candidates who aren't judges at a competitive advantage or disadvantage."

VIRGINIA'S PROGRAM

The state of Virginia recently funded a judicial evaluation program that will begin in July. By Virginia Supreme Court order, all trial court judges will be given a confidential analysis of their judicial performance at regular intervals. Appellate judges will be included later.

Judges will be judged "on the manner in which a judge administers justice, not on the content of those decisions," said the Judicial Performance Evaluation Task Force report. "Judges must be able to function independently of public opinion."

The task force was chaired by Virginia Supreme Court Justice Barbara Milano Keenan, who in 2003 faced opposition to her re-election by legislators because of her 1995 dissent in a case in which a child was removed from her mother's custody because of the mother's sexual orientation.

"The judicial performance evaluation program will serve a valuable role in preserving the independence of the judiciary," said Keenan. "Because the judges will not be subject to unfair criticism attacking the content of one or two of their cases, but will be subject to an overall review of their performance as required by the canons of judicial conduct."

At first, only jurors, and lawyers who regularly have seen the judge in action, will be asked to complete written evaluations that use criteria that mirror aspects of the Virginia Canons of Judicial Conduct. Judges will also evaluate themselves before receiving the results.

Results will be tabulated by an independent contractor and the original forms destroyed. Along with written comments, the results will be sent to a "facilitator [retired] judge" and to the judge being evaluated. However, in the year preceding an election, the results will also be shared by designated members of the state legislature. Virginia and South Carolina are the only states in which a legislature re-elects judges.