Saturday, August 21, 1999

Judging our judges

Open evaluation of judges
would increase public
confidence in the judiciary

By Mark Bennett,
Douglas Crosier
and Randy Roth
Special to the Star-Bulletin

The evaluation of judges by lawyers, with the results made public, would benefit judges, the bar and the public. Yet in a July 24 Insight article, two of Hawaii's most experienced trial lawyers, Rick Fried and Ken Robbins, argue against such evaluations.

Their primary thesis is that making public such evaluation results would undermine judicial independence, and would cause judges who wish to remain popular or become more popular to "rule on issues of law that favor the majority view within the populace, but which may not be what justice requires in a particular case."

They also argue that many evaluations would merely be "sour grape comments by attorneys who do not win their cases."

These arguments both ignore the benefits of an evaluation process in which the results are made public, and sell our judges and lawyers short.

Just like the bar has excellent, good, average and poor attorneys, the judiciary has excellent, good, average and poor judges. It benefits neither judges nor the public for anyone to pretend that this is not the case.

That being true, if the quality of judges can be effectively analyzed, the public is absolutely entitled to that analysis. Judges are public officials and, very simply, the public has a right to know.

While a little knowledge may be a dangerous thing, the only real question should be whether evaluations by the bar would be reasonably accurate. We think they would be.

Would a few attorneys use evaluations to "punish" judges because they lost cases? Perhaps, but there is no reason to believe that the number doing so would be anything but small. The vast majority of attorneys would take their responsibility seriously.

Making public an evaluation system would provide significant benefits:

It would provide information about the quality of the judiciary to both the bar and the public. In a free society, more information is almost always better than less. If our judiciary is excellent, then evaluations would almost certainly confirm that and serve to increase public confidence in our judicial system. If not, the public has a right to know.
It would provide the public and the bar a better basis for making recommendations about the reappointment of judges. Currently, when an attorney or judge is appointed to the bench, the bar makes a recommendation of "highly qualified," "qualified" or "unqualified," often based on little more than an interview. At the reappointment stage, evaluations by its members would provide the bar with a solid basis to make meaningful recommendations. And it would also provide the public some information on which to evaluate reappointment decisions.
It would likely improve judicial temperament. While judges should not "do the wrong thing" for the sake of a good evaluation, judges should know there is a downside for rude or intemperate behavior.
And just as there are rude, impatient and intolerant attorneys, there are rude, impatient and intolerant judges. While the vast majority do not fall in this category, it is not a bad thing for judges to consider whether their behavior could cause a bad evaluation.
It might improve the quality of the judicial work product. Some judges, who do not always "go the extra mile" before making decisions, may consider their rulings more carefully, or may give more extensive reasons for their decisions if they know they will be evaluated on their performance. While this hoped-for benefit is speculative, there is certainly no reason to believe any judge would spend less time or consider a decision less carefully because of an evaluation process.
Finally, bar evaluations that are made public would improve the quality of the judiciary. If a judge's evaluations from the bar are uniformly poor or even below average, this information should aid the Judicial Selection Commission in deciding whether or not to reappoint that judge.

An independent judiciary is very important. An excellent, independent judiciary is even more important. Bar evaluations that are made public may improve the quality and temperament of sitting judges, will provide members of the bar and the public valuable information about the quality of sitting judges who are, after all, public officials, and will certainly improve the judicial reappointment process. The benefits far outweigh the detriments, if any.

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Mark J. Bennett is a partner with McCorriston Miho Miller Mukai.
Douglas A. Crosier is a partner with Rush Moore Craven Sutton Morry & Beh, and is chairman of the Hawaii State Bar Association's Standing Committee on Judicial Administration.
Randall W. Roth is a professor at the University of Hawaii School of Law.