A performance evaluation program for the federal judiciary

Denver University Law Review

Volumn 86, Issue 1, 2008, Pages 7-52

  Kourlis, Rebecca Love ^a   Singer, Jordan M ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 63449129992     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (246)

1. E.g., Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB. L.J. 851, 864 (2002) ("Life tenure may be the most important ingredient in assuring federal judicial independence.");
2. see also, e.g., Mark A. Behrens & Cary Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 CORNELL J.L. & PUB. POL'Y 273, 305 (2002);
3. Daniel Herman, Nonpromotion and Judicial Independence, 72 S. CAL. L. REV. 455, 455 (1999).
4. But see Jonathan Remy Nash, Prejudging Judges, 106 COLUM. L. REV. 2168, 2181 & n.35 (noting that life tenure and the guarantee of no reduction in salary is "only one such template" for establishing judicial independence).
5. Charles Gardner Geyh & Emily Field van Tassel, The Independence of the Judicial Branch in the New Republic, 74 CHI.-KENT L. REV. 31, 51 (1998);
6. see also James E. Pfander, Removing Federal Judges, 74 U. CHI. L. REV. 1227, 1231 (2007) (noting that Hamilton himself "appears to have embraced impeachment-and-removal exclusivity as a feature of both the New York state constitution and the proposed federal Constitution . . . [and] did not identify any alternative judicial mode by which judges were to be removed from their offices.").
7. But see Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72, 72 (2006) (arguing that the Constitution permits Congress to "enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.").
8. See generally REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES (Roger C. Cramton & Paul D. Carrington eds., 2006);
9. see also Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769 (2006);
10. James E. DiTullio & John B. Schochet, Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 VA. L. REV. 1093 (2004).
11. See, e.g., Helen L. Norton, Reshaping Federal Jurisdiction: Congress's Latest Challenge to Judicial Review, 41 WAKE FOREST L. REV. 1003 (2006);
12. Caprice L. Roberts, Jurisdiction Stripping in Three Acts - Three String Serenade, 51 VlLL. L. REV. 593 (2006).
13. See, e.g., Mike Allen, Delay Apologizes for Comments on Judges, WASH. POST, Apr. 14, 2005 (page unavailable) (quoting House Majority Leader Tom DeLay's remarks that "the time will come" for federal judges who refused to restore Terri Schiavo's feeding tube "to answer for their behavior" and that the federal judiciary was "arrogant, out-of-control, [and] unaccountable.");
14. Dana Milbank, And the Verdict on Justice Kennedy Is: Guilty, WASH. POST, Apr. 9, 2005, at A3 (noting that several Congressional leaders had called for the impeachment of Justice Anthony Kennedy after he authored an opinion forbidding capital punishment for juveniles);
15. see also Editorial, Unimpeachable Sources - Impeaching Federal Judge Thornton Henderson, NAT. REV., Feb. 10, 1997 (suggesting that Judge Henderson should be impeached specifically for his decision enjoining California Proposition 209, which sought to prohibit racial preferences in certain programs).
16. See Steven B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch Relations, 95 GEO. L.J. 909, 924-25 (2007) (arguing that "there is ample and persuasive evidence from both Supreme Court and lower federal court appointment experience that presidential pursuit of a policy agenda in making judicial nominations (and the reaction to it by Senators of the opposition party) is the chief cause of the politicization of judicial selection at the federal level.").
17. See also NANCY SCHERER, SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE FEDERAL COURT APPOINTMENTS PROCESS 1-8 (2005).
18. See THE FEDERALIST No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The standard for good behavior for the continuance of office in the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.").
19. See INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM, SHARED EXPECTATIONS: JUDICIAL ACCOUNTABILITY IN CONTEXT app. A (2006) [hereinafter SHARED E XPECTATIONS].
20. Judicial performance evaluation originated in the 1970s and 1980s as a method of providing process-oriented information on a judge's performance to voters in judicial retention elections. It was subsequently adopted by a number of jurisdictions in which judges are subject to periodic reappointment by the governor or state legislature, and even in Massachusetts and New Hampshire, where state judges are appointed for life. See MASS. GEN. LAWS. ch. 211, § 26-26B (2005); MASS. SUP. JUD. CT. R. 1:16 (2008); N.H. SUP. CT. R. 56 (2008).
21. In New Hampshire, for example, trial judges are appointed until retirement or age seventy, and are nevertheless evaluated at least once every three years. See N.H. SUP. CT. R. 56(II)(A) (2008).
22. The size of the evaluation commission varies considerably across jurisdictions, from the seven-member Alaska Judicial Council to the thirty-member Arizona Commission on Judicial Performance Review. See Alaska Judicial Council, Membership, http://www.ajc.state.ak.us (last visited Oct. 17, 2008); Arizona Commission on Judicial Performance Review, http://www.azjudges.info/home/ (last visited Oct. 17,2008).
23. See, e.g., COLO. REV. STAT. § 13-5.5-102(l)(a)(I)(A) (2008) (dividing appointment authority over the ten-member Colorado state performance commission between the Governor, Chief Justice, President of the Senate and Speaker of the House).
24. See, e.g., S.B. 105, 2008 Gen. Sess. (Utah 2008) (establishing for Utah's new evaluation commission that "At the time of appointment, the terms of commission members shall be staggered so that approximately half the commission members' terms expire every two years.").
25. See generally AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE ON EVALUATION OF JUDICIAL PERFORMANCE, GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE (1985) [hereinafter 1985 ABA GUIDELINES]. The ABA reaffirmed these criteria in 2005. AMERICAN BAR ASSOCIATION, BLACK LETTER GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE (2005), available at http://www.abanet.org/jd/lawyersconf/pdf/jpec-final.pdf.
26. See SHARED EXPECTATIONS, supra note 8, at 20-37 (describing data collected in several states).
27. The retention/reappointment authority varies from jurisdiction to jurisdiction. In many states, retention of the judge is left directly to the voters, either in a special retention election in which the judge runs uncontested and must pass a straight up-or-down vote, or in a contested election. In other states, the legislature or governor bear the responsibility for reappointing judges. In Hawaii and the District of Columbia, reappointment and retention decisions are conducted by a commission. See D.C. Code § 1-204.33(c) (2008);
28. HAWAI'I CONST, art. VI, § 3; Hawai'i State Judiciary, Judicial Selection Commission, http://www.courts.state.hi.us/page- server/Courts/ 2E049BDF320E2D71F0456B57B6.html (last visited Oct. 17, 2008).
29. In New Hampshire and Hawaii, collective reports have been made available to the public that review the judiciary as a whole. See JUDICIARY, STATE OF HAWAI'I, JUDICIAL PERFORMANCE PROGRAM 2007 REPORT (2007) (on file with authors), available at http://www.courts.state.hi.us/attachment/ 218D1292A4F6A54DE9973AA6FC/JPP2007.PDF;
30. Letter from John T. Broderick, Jr., Chief Justice, to John Lynch, Governor, New Hampshire (Jul. 6, 2007) (on file with authors), available at http://www.nh.gov/judiciary/PerEval/2007-07-03%20final%20report.pdf.
31. But see Pamela A. Maclean, More States Evaluating Judicial Performance, NAT'L L.J. Jun. 2, 2008 (explaining that the New Hampshire Supreme Court will move to individualized reports in 2008).
32. In states with retention elections, full reports are frequently made available on the commission's website, and summary reports are provided in voter guides. See Rebecca Love Kourlis & Jordan M. Singer, Using Judicial Performance Evaluations to Promote Judicial Accountability, 90 JUDICATURE 200, 204-05 (2007) (describing methods of public dissemination in each state).
33. Any Colorado judge who is eligible for retention is subject to a full evaluation during his or her retention year. Historically, some judges have chosen not to stand for retention after the evaluation has been completed, for reasons both related and unrelated to the evaluation results. Only the evaluation results of those judges who choose to stand for retention are released to the public. Accordingly, the number of judges who are evaluated is always somewhat higher than the number whose evaluations are made publicly available.
34. See COLO. REV. STAT. § 13-5.5-106.3 (2008).
35. See infra nn.142-144 and accompanying text.
36. A seminal 1998 study of JPE programs in four states found that significant majorities of voters who received evaluation information agreed that "the official ...report adds to my confidence in the quality of judicial candidates [seeking retention]." KEVIN M. ESTERLING & KATHLEEN M. SAMPSON, JUDICIAL RETENTION EVALUATION PROGRAMS IN FOUR STATES: A REPORT WITH RECOMMENDATIONS 41 (1998) (omission in original).
37. See id. at 39-40.
38. Maurice Rosenberg, Court Congestion: Status, Causes, and Proposed Remedies, in THE COURTS, THE PUBLIC, AND THE LAW EXPLOSION 29, 31 (Harry W. Jones ed., 1965).
39. See Russell Wheeler, Empirical Research and the Politics of Judicial Administration: Creating the Federal Judicial Center, 51 LAW & CONTEMP. PROBS. 31, 38-39 (1988).
40. Chief Justice Warren E. Burger, Remarks on the State of the Federal Judiciary (Aug. 10, 1970), in HOWARD JAMES, CRISIS IN THE COURTS iv (1971). Burger continued this plea throughout his tenure as Chief Justice.
41. See Warren E. Burger, Introduction to Symposium, Reducing the Costs of Civil Litigation, 37 RUTGERS L. REV. 217 (1985) (rejecting that additional judicial resources would alone resolve the challenges faced by the federal courts, and arguing that "[j]udicial administration needs tireless, articulate workers.").
42. See, e.g., Robert F. Peckham, The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 CAL. L. REV. 770 (1981).
43. The most prominent of the 1983 amendments were those to Rule 11 (mandating the imposition of sanctions for abuses related to the signing of pleadings and motions), Rule 16 (requiring case management conferences), and Rule 26 (giving the judge authority to keep discovery proportional to the magnitude of the case). See FED. R. CIV. P. 11, 16, 26 advisory committee's notes (1983 amend.).
44. Id.
45. 28 U.S.C. § 476 (2008). Given the notion of transparency and accountability inherent in the CJRA, it is ironic that the Director's semiannual reports are not available to the public on the official U.S. Courts website.
46. Some statistical information on the performance of an entire court is available to the public outside the auspices of the CJRA. The Federal Court Management Statistics on the U.S. Courts website provide data on, among other things, each district court and circuit court's overall caseload for the previous five years, actions per judgeships, and median times from filing to disposition and filing to trial for district courts. See generally http://www.uscourts.gov/fcmstat/ (then follow the District Court hyperlink for the year for which data is sought). The Federal Court Management Statistics, however, do not publicly disclose figures for individual judges.
47. Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, P.L. 96-458, 94 Stat. 2035 (1980) (current version at 28 U.S.C. §§ 351-364 (2006)).
48. 28 U.S.C. § 351(a).
49. Id. § 352.
50. Id. § 354(a)(l)-(2).
51. Id. § 354(3)(a).
52. A recent study found that roughly 650 to 800 complaints were filed annually between 2001 and 2005, with nearly half coming from prisoners. See JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMMITTEE, IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980: A REPORT TO THE CHIEF JUSTICE 22 (2006). Almost all of the complaints were dismissed, 88% of the time because the allegations related directly to the merits of the case or were otherwise frivolous.
53. Id. at 6, 28.
54. See 5 U.S.C. § 4301(2)(D) (2006) (exempting ALJs from the definition of "employee" for the purpose of performance appraisals).
55. See also Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluations for ALJs, 7 ADMIN. L.J. AM. U. 589,590 (1993); 5 C.F.R. § 930.211 (2008).
56. See, e.g., Lubbers, supra note 37, at 590-93.
57. GENERAL ACCOUNTING OFFICE, ADMINISTRATIVE LAW PROCESS: BETTER MANAGEMENT Is NEEDED v-vi (1978).
58. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES RECOMMENDATION 78-2, PROCEDURES FOR DETERMINING SOCIAL SECURITY DISABILITY CLAIMS 36 (1978); ADMINISTRATIVE CONFERENCE OF THE UNITED STATES RECOMMENDATION 86-7, CASE MANAGEMENT AS A TOOL FOR IMPROVING AGENCY ADJUDICATION 53 (1986).
59. ACUS RECOMMENDATION 78-2, supra note 40.
60. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES: THE FEDERAL ADMINISTRATIVE JUDICIARY RECOMMENDATION NO. 92-7, 89 (1992).
61. Id.
62. See, e.g., Lubbers, supra note 37, at 595-96; James P. Timony, Performance Evaluation of Federal Administrative Law Judges, 7 ADMIN. L.J. AM. U. 629 (1993);
63. see also Ann Marshall Young, Evaluation of Administrative Law Judges: Premises, Means, and Ends, 17 J. NAT'L ASS'N ADMIN. L. JUDGES 1, 54-70 (1997) (proposing a different approach to ALJ evaluation).
64. Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 ARIZ. ST. L.J. 19, 59-61, 96-97 (1998).
65. See Press Release, U.S. Dep't of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals, Aug. 9, 2006, available at 2006 WL 2282541.
66. Nina Bernstein, Immigration Judges Facing Performance Reviews, N.Y. TIMES, Aug. 10. 2006, available at http://www.nytimes.com/ 2006/08/10/washington/10immig.html.
67. See id.
68. Compare Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 468, 469 (2007) (describing as an "especially bad idea[]" "[p]erformance reviews that take into account and serve as a criterion for retention and promotion")
69. with Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication, 60 STAN. L. REV. 475, 499 (2007) (noting that the 1992 ACUS study "identified several criteria for a system of performance evaluation that appropriately protects decisional independence," including peer review and external oversight).
70. See DARLENE R. DAVIS, JUDICIAL EVALUATION PILOT PROJECT OF THE JUDICIAL CONFERENCE COMMITTEE ON THE JUDICIAL BRANCH 2 (1991).
71. Id.
72. See id.
73. FEDERAL JUDICIAL CENTER, 2003 ANNUAL REPORT 11
74. see also Surveys on Behalf of the United States Bankruptcy Court for the Northern District of Illinois (on file with authors), available at http://www.ilnb.uscourts.gov/Announcements/FJCSurvey.pdf.
75. Hon. James R. Browning, Evaluating Judicial Performance and Other Matters, 90 F.R.D. 197, 198 (1981) (quoting mandate of Ninth Circuit's Ad Hoc Committee to Study the Evaluation of Federal Judges).
76. See id.
77. Id.
78. See id. at 199.
79. Id.
80. See id. at 199-200.
81. Id. at 200.
82. See DAVIS, supra note 50, at 3.
83. Id. at 3-4.
84. Id. at 1.
85. See id. at 2.
86. See id. at 4.
87. Id. at 5.
88. Id. at 4.
89. Id.
90. Id. at 8.
91. Id.
92. Id.
93. Id.
94. See generally id.
95. See generally id. at 4 ("[T]he subcommittee resolved that the results would remain strictly confidential.").
96. See, e.g., Jacqueline R. Griffin, Judging the Judges, 21 LITIGATION 5 (1995).
97. Timony, supra note 44, at 657.
98. Alfonso Chardy, Immigration Law: Respect Sought for Busy Judges, MIAMI HERALD, Sept. 25,2006, at B1.
99. Young, supra note 44, at 7-8.
100. INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM, THE BENCH SPEAKS ON JUDICIAL PERFORMANCE EVALUATION: A SURVEY OF COLORADO JUDGES 31 (2008) [hereinafter THE BENCH SPEAKS]. Nearly two thirds of all judges in the state, at both the trial and appellate levels, responded to the anonymous survey.
101. Id. at 2.
102. ESTERLING & SAMPSON, supra note 21, at 44.
103. Id.
104. See id.
105. See McLean v. DK Trust, Case No. 06-CV-982, at 1 (Colo. 20th Jud. Dist. Oct. 17,2007).
106. See, e.g., Heath Urie, Judge to Revisit 'Land-Grab' Case, BOULDER DAILY CALERA, Apr. 2, 2008, at Al;
107. Editorial, Legal Land Grab Should be Overturned on Appeal, DENVER POST, Nov. 20, 2007.
108. See, e.g., Ryan Morgan, Judge in Land Case up for Retention, BOULDER DAILY CAMERA, Apr. 3, 2008, at Al.
109. Judge Klein was appointed to the bench in 2005. See Commissions on Judicial Performance, Honorable James C. Klein (2008), http://www. cojudicialperformance.com/retention.cfm?ret=210 (last visited Oct. 20, 2008).
110. Id.
111. Colorado District Judge Election Results, Denver Post, http://data.denverpost.com/election/results/district-judge/ (last visited Nov. 21, 2008).
112. Young, supra note 44, at 27.
113. Timony, supra note 44, at 641.
114. 28 U.S.C. § 631(e) (2008).
115. See id. § 631(a).
116. Id. § 152.
117. See, e.g., Griffin, supra note 75, at 61-62 ("[A]ny [state] judge who is given a 'do not retain' [recommendation] has no access to information on why or how the decision was made, and he is unlikely to have the resources to mount a response ...."). This statement is incorrect. In most comprehensive JPE states, each judge receives an extensive report compiling all the data on his or her performance before the evaluation is even released to the public. Colorado allows judges who disagree with a recommendation to seek a second interview with the evaluation commission, and, if necessary, to write a short rebuttal statement to go to the voters prior to the evaluation's release.
118. See S.B. 08-54, 66th Gen. Assem., 2d Reg. Sess. (Colo. 2008) (codified as amended at COLO. REV. STAT. § 13-5.5-106(l)(a)(V) & -(2)(a)(V) (2008)). Arizona also enhances transparency by requiring that the ultimate vote on whether the judge had met performance standards be taken publicly.
119. See at ARIZ. COMM'N ON JUDICIAL PERFORMANCE REVIEW, RULES OF PROCEDURE FOR JUDICIAL PERFORMANCE REVIEW IN THE STATE OF ARIZONA, 6(e)(3) (2006), available at http://azjudges.info/ about/procedure.cfm.
120. See Browning, supra note 54, at 199 (discussing a San Francisco Bar Association poll in the late 1970s that led to rankings of individual judges in the press).
121. See, e.g., Editorial, Bar's Judicial Ratings Will Aid the Voters, NEWS-TRIBUNE (Tacoma, Wash.), June 3,2008, available at http://www.thenewstribune.com/opinion/story/379136.html.
122. Id.
123. THE BENCH SPEAKS, supra note 79, at 26.
124. Id.
125. See generally Griffin, supra note 75, at 5-7.
126. DAVIS, supra note 50, at 7.
127. For example, Alaska conducts its JPE surveys through the University of Alaska Anchorage, Virginia uses Virginia Commonwealth University, and a recent pilot program in Pierce County, Washington relied on surveys conducted through Washington State University.
128. The Commonwealth of Massachusetts, for example, developed in-house an electronic system to survey attorneys. Respondents complete surveys for individual judges on a secure, encrypted website, and results are automatically aggregated by judge. Mona Hochberg, Judicial Performance Evaluation Coordinator, Mass. Supreme Judicial Court, Remarks at IAALS Symposium: Judicial Performance Evaluation: Strategies for Success (Aug. 6, 2008) (copy of presentation on file with authors).
129. For excellent examples of state court websites describing their JPE programs and recent results, see Alaska Judicial Council, http://www.ajc.state. ak.us (last visited Oct. 17, 2008); Arizona Commission on Judicial Performance Review, http://www.azjudges.info (last visited Oct. 17, 2008);
130. Colorado Commissions on Judicial Performance, http://www. cojudicialperformance.com (last visited Oct. 17, 2008);
131. Kansas Commission on Judicial Performance, http://www.kansasjudicialper- formance.org (last visited Oct. 17, 2008);
132. Supreme Court of New Mexico Judicial Performance Evaluation Commission, http://www.nmjpec.org (last visited Oct. 17,2008).
133. See Hochberg, supra note 103.
134. Larry Cohn, Executive Dir., Alaska Judicial Council, Remarks at IAALS Symposium: Judicial Performance Evaluation: Strategies for Success (Aug. 6, 2008) (notes from presentation on file with authors).
135. Id.
136. Edward Macon, Assistant Executive Sec'y and Counsel, Supreme Court of Virginia, Remarks at IAALS Symposium: Judicial Performance Evaluation: Strategies for Success (Aug. 6, 2008) (notes from presentation on file with authors).
137. Cohn, supra note 106.
138. See, e.g., Griffin, supra note 75, at 7.
139. See id.
140. Charles T. Wells, Editorial, Viewpoint: The Inherent Danger of Judicial Evaluation Commissions, JACKSONVILLE DAILY RECORD, Jan. 7, 2008, available at http://www.jaxdailyre-cord. com /showstory.php?Story-id=49192.
141. Id.
142. For a discussion of a recent project to promote effective communication between Congress and the courts, see Robert A. Katzmann & Russell R. Wheeler, A Mechanism for Statutory Housekeeping: Appellate Courts Working with Congress, 9 J. APP. PRAC. & PROCESS 131 (2007).
143. Russell R. Wheeler & Robert A. Katzmann, A Primer on Interbranch Relations, 95 GEO. LJ. 1155, 1171 (2007).
144. See Kourlis & Singer, supra note 17, at 202.
145. See REBECCA LOVE KOURLIS & JORDAN M. SINGER, A FRESH LOOK AT JUDICIAL PERFORMANCE EVALUATION IN CALIFORNIA 4-5 (2007), available at http://www.du.edu/ legalinstitute/news/CA%20JPE.html.
146. John T. Wold & John H. Culver, The Defeat of the California Justices: The Campaign, The Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 350 (1987);
147. see also Bill Zimmerman, The Campaign that Couldn't Win: When Rose Bird Ran Her Own Defeat, L.A. TIMES, Nov. 9, 1986, at V1 (noting that "[t]o base a political campaign on the independence of the judiciary was to commit electoral suicide").
148. See Traceil V. Reid, The Politicization of Retention Elections: Lessons from the Defeat of Justices Lanphier and White, 83 JUDICATURE 68, 76-77 (1999).
149. Id. at 72.
150. See id.
151. Penny J. White, Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations, 29 FORDHAM URB. L.J. 1053, 1076 (2002).
152. The proposed initiative, styled as Constitutional Amendment E, would have allowed a thirteen-member "Special Grand Jury" to expose judges and prosecutors, as well as citizens serving on juries, school boards, county commissions, or in similar decision-making capacities to fines and jail - and strip them of public insurance coverage and up to half their retirement benefits - for making decisions that break rules defined by the special grand jurors. See CHRIS NELSON & KEA WARNE, SOUTH DAKOTA 2006 BALLOT QUESTIONS (on file with authors), available at http://www.sdsos.gov/ electionsvoteregistrarJon/electvoterpdfs/2006SouthDakotaBallotQuestion-Pamphlet. pdf. The proposed amendment was designed to apply retroactively. Id.
153. Due in large part to an extensive public campaign, the proposal was ultimately defeated by a 9-1 margin. See SOUTH DAKOTA SECRETARY OF STATE, GENERAL ELECTION OFFICIAL RETURNS FOR BALLOT QUESTIONS (on file with authors), http://www.sdsos.gov/elections voteregistration/ pastelections-electioninfo06-GEballotquestions.shtm (last visited Oct. 17,2008).
154. See Letter from Peter D. Webster, Chair, Comm. on Judicial Evaluations, to R. Fred Lewis, Chief Justice, Fla. Sup. Ct. (July 10,2007) (on file with authors).
155. See Florida Department of State, Division of Elections, Initiative No. 02-06 (2002), available at http://election.dos.state.fl.us/ initiatives/initdetail.asp?account=35025&seqnum=l.
156. As one example, Missouri Governor Matt Blunt used part of his 2008 State of the State Address to encourage the state legislature to "close the door" on courts who have "hijack[ed] the powers to tax and spend," even though no Missouri state court had raised such an issue in an opinion. Governor Matt Blunt, 2008 State of the State Address (Jan. 15, 2008) (on file with authors), available at http://governor.mo.gov/State-of-the- State-2008.pdf. Missouri is now the center of a firestorm concerning the best form of state judicial selection, and legislative threats to discontinue the Missouri Plan - the first state merit selection system implemented in the country - continue.
157. On February 29, 2008, the Supreme Court of Missouri created JPE committees at the trial and appellate levels by court rule, pursuant to its constitutional authority. The basis for the rule was a Report of the Missouri Judicial Evaluation Survey Committee. The program went into effect almost immediately, with the first set of reports and recommendations scheduled to be released in September 2008.
158. See Letter from Dale C. Doerhoff, State Chair, Missouri Judicial Performance Evaluation Comms., to Participants at IAALS Symposium: Judicial Performance Evaluation: Strategies for Success (Aug. 5,2008) (on file with authors).
159. See STATE OF COLORADO, ANALYSIS OF THE 2006 BALLOT PROPOSALS 7-8 (2006).
160. The proposed initiative gained only 43% support in the November 2006 election. See STATE OF COLORADO, OFFICIAL PUBLICATION OF THE ABSTRACT OF VOTES CAST FOR THE 2005 COORDINATED, 2006 PRIMARY, 2006 GENERAL 140 (2006).
161. See INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM & LEAGUE OF WOMEN VOTERS OF COLORADO, 2007 COLORADO VOTER OPINIONS ON THE JUDICIARY 4 (2007), available at http://www.du.edu/legahnstimte/foim-voter-input.htrnl.
162. In restricting these pilot proposals to the district court level, we do not mean to suggest that other federal judges, such as appellate judges and ALJs, should themselves have no formal evaluation. Indeed, at the state level appellate judges have been evaluated for decades, and thoughtful programs have been developed to tailor appellate evaluations to the specific tasks and responsibilities of those on the appellate bench. New programs for appellate judges are being considered as well. Among them, the State of New Hampshire recently established an internal committee responsible for developing individualized performance evaluations of its Supreme Court. See Maclean, supra note 19.
163. For a discussion of the benefits of controlled experimentation in the context of procedural rules, see Maurice Rosenberg, The Impact of Procedure-Impact Studies in the Administration of Justice, 51 LAW & CONTEMP. PROBS. 13, 14-16 (1988).
164. See CHICAGO COUNCIL OF LAWYERS, AN EVALUATION OF UNITED STATES MAGISTRATE JUDGES 1 (2008).
165. Id. 2.
166. Id.
167. Id. at Exhibit 2.
168. See Steven Flanders, Evaluating Judges: How Should the Bar Do It?, 61 JUDICATURE 304, 304-05 (1978) (praising the efforts of the Chicago Council of Lawyers but cautioning that bar polls alone may not produce a fully accurate picture of the judiciary).
169. The State of Alaska actually permits attorneys to complete surveys based on professional reputation or social contacts with the judge, but they must clearly indicate that this is the basis for their answers, and the basis for such responses is noted in the judge's final evaluation. See UNIVERSITY OF ALASKA ANCHORAGE BEHAVIORAL HEALTH RESEARCH AND SERVICES, ALASKA JUDICIAL COUNCIL RETENTION SURVEY 1 (2004). No other jurisdiction permits evaluations based on anything other than direct experience.
170. See, e.g., COLO. RULES GOVERNING COMM'NS ON JUD. PERF. 10(a) (2007) (requiring that "surveys shall be conducted on a continuing basis").
171. DAVIS, supra note 50, at 9.
172. THE BENCH SPEAKS, supra note 79, at 13.
173. Id. at 14.
174. For related model juror questions, see SHARED EXPECTATIONS, supra note 8, at Appendix F.
175. See, e.g., STATE OF UTAH, UTAH VOTER INFORMATION PAMPHLET - GENERAL ELECTION NOVEMBER 2, 2004 at 46-69 (2004) (showing that jurors gave favorable responses of 95% or higher to virtually all survey questions for virtually all district judges evaluated in 2004).
176. Paul D. Carrington, The Civil Jury and American Democracy, 13 DUKE J. COMP. & INT'L L. 79,93 (2003).
177. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 107 (1990).
178. Kevin S. Burke, A Court and a Judiciary that Is as Good as Its Promise, 40 CT. REV. 4, 6 (2003).
179. See SHARED EXPECTATIONS, supra note 8, app. G.
180. In Colorado, nearly 56% of litigants in domestic relations cases were self-represented in 1999, and the percentage was growing. GOVERNOR'S TASK FORCE ON CIVIL JUSTICE REFORM, FINAL REPORT 35 (2000) (on file with authors), available at http://www.state.co.us/cjrtf /report/report.htm (last viewed Aug. 3,2008).
181. ADMINISTRATIVE OFFICE OF THE U.S. COURTS, 2007 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS, tbl. S-23 (2007).
182. See LAWRENCE F. LOCKE ET AL., READING AND UNDERSTANDING RESEARCH 48 (1998) (explaining the importance of an adequate sample size).
183. Here we define "termination" to mean the formal closing of the case, notwithstanding the possibility of appeal or reopening under other circumstances. Cases that close before an answer or other responsive pleading is filed would not be included.
184. See Gabriel M. Gelb & Betsy D. Gelb, Internet Surveys for Trademark Litigation: Ready or Not, Here They Come, 97 TRADEMARK REP. 1073, 1076-79 (2007) describing the growth and development of online surveys);
185. Dwight B. King, Jr., User Surveys: Libraries Ask, "Hey, How Am I Doing?", 97 LAW LlBR. J. 103, 109-112 (2005) (same).
186. E-mail has become so essential to electronic case filing that one recent decision suggests that an attorney's failure to check the status of a case via e-mail or the PACER system may constitute professional malpractice. See Jessica Belskis, Electronic Case Filing: Is Failure to Check Related to an Electronically Filed Case Malpractice?, 2 SHTDLER J.L. COM. & TECH. 13, 13 (2005) (discussing Blackburn v. U.S. Dep't of Agric. & Forest Serv., No. C04-1404RSM (W.D. Wash. 2005)).
187. Joel D. Wisner & William J. Corney, An Empirical Study of Customer Comment Card Quality and Design Characteristics, 101 BRITISH FOOD J. 621, 629 (1999).
188. See Randall T. Shepard, The New Role of State Supreme Courts as Engines of Court Reform, 81 N.Y.U. L. REV. 1535, 1546 (2006) (discussing the emergence of "pro se kiosks" in Maricopa County, Arizona);
189. Henri E. Cauvin, New Internet Kiosks Make Courts More UserFriendly, WASH. POST, Jan. 18, 2007, at DZ03 (noting installation of kiosks in the D.C. Superior Court to provide information and allow payment of fines).
190. THE BENCH SPEAKS, supra note 79, at 14.
191. See id. at 15-19.
192. Assuming adequate resources are available, the benefits to using the FJC are rather obvious. The FJC's knowledge of the federal courts and the circumstances under which they operate makes it a natural first choice. At the same time, however, using a competent organization outside the judiciary to review the effectiveness of the pilot projects would remove any charge that the federal courts were simply reviewing themselves and might add to public confidence in the conclusions ultimately reached.
193. At least one year before the expiration of the magistrate judge's term, the district court must inform the magistrate judge whether it has determined not to reappoint the magistrate judge, or whether it has determined to consider reappointing the magistrate judge. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE SELECTION, APPOINTMENT, AND REAPPOINTMENT OF UNITED STATES MAGISTRATE JUDGES 29 (2002). If the district court chooses the latter route, it must issue a public notice soliciting volunteers to serve on a "merit selection panel" for reappointment.
194. Id. at 30. The panel must include at least two lawyers and at least two non-lawyers. Id. at 12.
195. id. at 30
196. Judith Resnik, "Uncle Sam Modernizes His Justice": Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 GEO. L.J. 607, 676 (2002).
197. Id.
198. While discussed here solely in the context of magistrate judges, self-evaluations and review of written orders could obviously be piloted, and, if successful, employed in any JPE program for federal district judges, bankruptcy, judge, and the like.
199. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, supra note 16l,at 30.
200. As of 2008, all seven states with comprehensive JPE programs (Alaska, Arizona, Colorado, Kansas, New Mexico, Tennessee and Utah) utilize a commission with roughly equal representation of attorneys and laypersons.
201. See ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, supra note 161, at 12.
202. See A. John Pelander, Judicial Performance Review in Arizona: Goals, Practical Effects and Concerns, 30 ARIZ. ST. L.J. 643, 648-49 (1998);
203. John M. Roll, Merit Selection: The Arizona Experience, 22 ARIZ. ST. L.J. 837, 878-79 (1990). The same criticisms have emerged where evaluations are conducted by Judicial Councils or otherwise controlled by the judiciary itself. The State of Utah, for example, instituted a JPE program in 1984 under the auspices of its Judicial Council, which consists of twelve judges and one attorney. That approach came under fire in the mid-2000's and was a major consideration undertaken by the state's Judicial Retention Task Force in 2007. In March 2008, Utah passed new JPE legislation that, among other things, entrusted evaluations to a commission composed of attorneys and non-attorneys.
204. See UTAH CODE ANN. § 78A-12-201 (2008).
205. Henry T. Reath, Judicial Evaluation-The Counterpart to Merit Selection, 60 A.B.A. J. 1246, 1247 (1974).
206. See, e.g., Anne Rankin Mahoney, Citizen Evaluation of Judicial Performance: The Colorado Experience, 72 JUDICATURE 210, 216 (1989).
207. The State of Alaska, for example, has used a special corps of courtroom observers who are trained in advance and are required to couch their observations in specific categories of predetermined, process-oriented criteria. As many as fifteen observers are assigned to each judge. Each observer is given approximately forty hours of advance training, and the observers are directed to sit in courtroom proceedings at unscheduled intervals. They observe both criminal and civil cases and proceedings ranging from arraignments and motion hearings to full jury trials. The observers' notes are collected into a report for each judge, which specifies the number of observations, types of events and cases observed, the total number of hours the judge was observed, and the average rating the judge received in each category. The final reports are then forwarded to the Alaska Judicial Council for consideration as part of the judge's overall evaluation. See ALASKA JUDICIAL OBSERVERS 2006 BIENNIAL REPORT 1-8 (on file with authors), available at http://www.ajc.state.ak.us/Retention2006/ JudicialObservers2006.pdf.
208. THE BENCH SPEAKS, supra note 79, at 20.
209. Id.
210. Colorado's JPE program requires that each commission member directly observe at least three judges up for evaluation in unannounced courtroom visits. See COLO. REV. STAT. § 13-5.5-103(l)(k) & -105(l)(c) (2008);
211. Jane B. Howell, Executive Director, Colorado Office of Judicial Performance Evaluation, Presentation on Colorado Commissions on Judicial Performance (Aug. 2008), http://www.courts.state.co.us/Media/Law-School.cfm (select link for "Judicial Performance and Retention Presentation") (last visited Oct. 21,2008).
212. THE BENCH SPEAKS, supra note 79, at 21.
213. Id. at 21-22.
214. See Pelander, supra note 169, at 690.
215. Id. at 692; see also ARIZ. JUD. PERF. REV. R. 4(f).
216. See Pelander, supra note 169, at 693.
217. See, e.g., 18 U.S.C. § 3161 (2008).
218. See Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375, 430 (1992).
219. See Stephen B. Burbank, Procedural Rulemaking under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 131 U. PA. L. REV. 283, 291-94 (1982) (describing the legislative history of the Act and the concerns of some that the Judicial Councils were unwilling to exercise existing power).
220. See, e.g., Mary Brigid McManamon, Is the Recent Frenzy of Civil Justice Reform a Cure- Ail or a Placebo? An Examination of the Plans of Two Pilot Districts, 11 REV. LITIG. 329, 332 (1992).
221. 28 U.S.C. §651 (2008).
222. The Third Branch, Administrative Office of the U.S. Courts, Washington, D.C. Transparency Takes Shape (Dec. 2006), available at http://www.uscourts.gov/ttb/12-06/transparency/index.html;
223. see also Linda Greenhouse, Federal Judges Take Steps to Improve Accountability, N.Y. TTMES, Sep. 20,2006, at A20.
224. See Greenhouse, supra note 186;
225. see also Charles Lane, Judges Alter Rules for Sponsored Trips, WASH. POST, Sep. 20,2006, at A23.
226. See News Release, U.S. Courts, Pilot Project Begins: Two Courts Offer Digital Audio Recordings Online (Aug. 6, 2007) (on file with authors).
227. See Jean E. Dubofsky, Judicial Performance Review: A Balance Between Judicial Independence and Public Accountability, 34 FORDHAM URB. L.J. 315, 334 (2007) ("[J]udges' own evaluations often are too self-serving; no one can possibly be as good as some judges think they are.").
228. We discuss the ability to change or amend rules and guidelines in greater detail in Part IV(B) infra.
229. We fully recognize that the process of crafting legislation is inherently political and that even the most careful strategies and thoughtful suggestions are not immune from criticism and compromise. But that sober conclusion warrants greater involvement in the process, not less. Two recent legislative amendments to state JPE programs illustrate the point. In Utah, the Task Force on Judicial Retention considered changes to the state's program through the fall of 2007 before a bill was introduced in the state senate in early 2008. The Task Force was composed of members of both houses of the state legislature and three state court representatives, including the Chief Justice.
230. See Minutes of the Judicial Retention Election Task Force (Aug. 14, 2007) (on file with authors). While it is not fair to say that every member of the Task Force walked away from the experience with everything he or she wanted, the discussion only benefitted the final legislative outcome. Similarly, the respective chairs of Colorado's Senate and House Judiciary Committees held open meetings throughout the summer and fall of 2007 to receive input on the reenactment of that state's JPE statute. The interests of the courts, attorneys' groups, legal organizations, think tanks and private individuals were considered during these initial meetings and throughout the legislative process. The bill that ultimately became law, while perfect to no one, was nevertheless largely acceptable to all.
231. See generally Wells, supra note 112 and accompanying text.
232. For a more extensive discussion of best practices for the composition of independent commissions at the state level, see SHARED EXPECTATIONS, supra note 8, at 81-82.
233. This timing scheme would allow sufficient time for a thorough evaluation (and, if requested, a recommendation on reappointment) based on three years of the magistrate judge's performance. It would also afford the magistrate judge a full year before reappointment to address any weaknesses identified in the evaluation.
234. See News Advisory, New Hampshire Judiciary, 2002 Judicial Performance Evaluations Released (Jul. 11, 2003) (on file with authors) available at http://www.courts.state.nh.us/press/pr030611 .htm.
235. MASS. GEN. LAWS. ch. 211, § 26A (2008) (setting evaluation intervals of twelve to eighteen months for judges with four years of experience or less, and evaluation intervals of eighteen to thirty-six months forjudges with more than four years of experience).
236. If, for example, the judge retires or resigns after the evaluation is conducted but before the date scheduled for its release, there is little value in making the evaluation public. This approach has precedent at the state level. Colorado has a longstanding requirement that judges be shown their final evaluation and "narrative profile" (a short form of the evaluation for inclusion in voter guides) at least 45 days before they must declare their intent to seek retention. COLO. REV. STAT. §§ 13-5.5-106(l)(a)(V) & (2)(A)(3) (2008). Judges who resign from the bench or do not declare their intent to seek retention do not have their evaluations circulated or placed in the voter guide. In 2008, the state's JPE legislation was amended to require the state's Office of Judicial Performance Evaluation to issue a statewide statistical report thirty days before the election, setting forth the total number of justices and judges who were eligible to stand for retention, the total number of evaluations performed by the state and district commissions, the total number of justices or judges who were evaluated but did not stand for retention, and the total number of justices and judges recommended for retention.
237. See id. §§ 13-5.5-103(l)(q)(I)-(IV).
238. One commentator recently observed in a discussion of judicial nominating commissions: A lack of transparency is highly damaging to the public's perception of the commission system. In the absence of information regarding proceedings, the public tends to think that the system is 'closed,' and that judges are selected through 'the old-boy system' or some other process that has little to do with the qualifications of the candidate. Such perceptions undermine the confidence in the quality of judges and ultimately in the quality of the legal system. Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based System, 34 FORDHAM URB. L.J. 125, 157 (2007). The identical point applies to judicial evaluation commissions-full disclosure of the evaluation process and the identities of the commission members promotes public understanding of the system and confidence therein.
239. Alaska, for example, has utilized merit selection since statehood and has used a JPE program since 1975. During that time, only three judges have not been recommended for retention, in part because of the careful efforts of the nomination commission to recommend highly qualified candidates. Bill Gordon, Member, Alaska Judicial Council, Remarks at IAALS Symposium: Judicial Performance Evaluation: Strategies for Success (Aug. 5, 2008) (notes of remarks on file with authors).
240. This list of federal cases generating high media interest in the last several years alone is extensive and springs easily to mind, particularly in the areas of accused corporate malfeasance, criminal activity by celebrities, or terrorism. The judges presiding over these cases have found themselves under an unexpected (and uninvited) microscope, with greatly increased public scrutiny.
241. E.g., Impeach Judge Turk!, http://www.anusha.com/turk.htm (last visited Oct. 17, 2008); Ten Federal Judges Who Must Be Impeached for Abuse of Power, http://home.earthlink.net/~dlaw70/topl0.htm (last visited Oct. 17,2008).
242. See, e.g., The Robing Room, http://www.therobingroom.com (last visited Oct. 17, 2008). The website describes itself as "a site by lawyers for lawyers."
243. Id. Their mission is "to provide a forum for evaluating federal district court judges and magistrate-judges."
244. Id. Lawyers are encour-aged to provide numerical ratings or comment on individual judges.
245. See id. Commenters' e-mail addresses are collected, but no names are displayed in connection with the comments.
246. See id. For a similar example, see Robe Probe, http://www.robeprobe.com (last visited Oct. 17, 2008).