Judicial devaluation

Issue January 2007 By Mark D Mason

Ensuring a fair and impartial judiciary requires a system of judicial evaluation which improves the performance of individual judges and the judiciary as a whole. The Supreme Judicial Court, the MBA and, most recently, Massachusetts Lawyers Weekly, conduct judicial evaluations. The SJC’s judicial evaluation program has enjoyed a significant response since its inception in 2001. The depth of response to the SJC program has created a credible body of information enabling our courts to pursue judicial enhancement programs.

The goal of all three programs is to assess judicial performance in order to improve the quality of jurisprudence throughout the commonwealth. The programs differ markedly to the extent that the Massachusetts Lawyers Weekly program proposes to publish its individual judicial evaluations.

Judicial evaluation programs which do not publicize their findings meet the public’s interest in ensuring that the public receives the highest quality jurisprudence and in preserving a fair and impartial judiciary. Judicial evaluation programs which publicize individual judicial evaluations may have good intentions. Such programs, however, neither promote nor preserve a fair and impartial judiciary.

On balance, the risk of harm attendant the publication of individual judicial evaluations outweighs such publication. It is likely that the widespread publication of individual judicial evaluations will feed a public which is, more often than not, interested in sensationalist reporting. Indeed, reporting on individual judicial evaluations does not occur on a level playing field. The Code of Judicial Ethics significantly restricts the ability of judges to respond to criticism. The resulting lack of response from individual judges is likely to lead the public to conclude that such criticism, whether warranted or not, was valid.

We need not look far to find a model for judicial evaluation programs. In February 2005, the ABA House of Delegates adopted the Black Letter Guidelines for the Evaluation of Judicial Performance. The ABA guidelines provide direction for those who recommend the publication of individual judicial evaluations.

Several of the ABA’s recommendations bear serious consideration:

• "The dissemination of data that results from a judicial evaluation program should be consistent with and conform to the uses of the program. Except for the authorized uses of the performance evaluation and consistent with the law, the data and results should be confidential";

• When judicial evaluations are used only for judicial self-improvement, individual results should be provided only to the judge evaluated and the supervisory judge responsible for the performance of the court where the judge serves;

• "When judicial evaluations are used to improve the quality of the judiciary as a whole, results should not identify or give comparative rankings of individual judges";

• If evaluations of individual judges are to be publicly disseminated, "Judges should have an opportunity to review, respond and meet with members of the evaluation body before the results are made public";

• "Judicial evaluation programs should be structured and implemented so as not to impair judicial independence. The evaluation process should be free from political, ideological and issue-oriented considerations";

• Ultimate authority for judicial evaluation programs should rest within a state’s highest court; and

• "In jurisdictions where judicial evaluations are used solely for self-improvement and for improving the quality of the judiciary as a whole, oversight committees should be composed of members of the bench and the bar."

The application of the ABA guidelines to judicial evaluations in Massachusetts would serve us well. For example, the SJC might consider adding members of the bar to its judicial evaluation oversight committee. The inclusion of members of the bar may only strengthen the trust and confidence which the bar and the public have in our courts. And Massachusetts Lawyers Weekly may wish to rethink the publication of individual judicial evaluations. The publication of such information is unfairly one-sided. Rather than promote a fair and impartial judiciary, such publication runs the significant risk of chilling and popularizing judicial decision-making. Such publication imbues the process with political, ideological and issue-oriented considerations which we should avoid. In building the court’s constituency, however, the SJC might consider publishing aggregate statistical information regarding its judicial evaluation programs. The publication of such information may go a long way toward promoting the integrity of our judiciary, identifying areas of necessary improvement and preserving the ideals of a fair and impartial judiciary.