The more you know: How 360-degree feedback could help federal district judges

Rutgers Law Review

Volumn 62, Issue 3, 2010, Pages 687-723

  Kessler, David K ^a  

^a US Court of Appeals for the DC Circuit ^*  (United States)

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EID: 78649756480     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (265)

1. John G. Roberts, Jr., 2008 Year-End Report on the Federal Judiciary, THE THIRD BRANCH, Jan. 2009, at 1, 3 (emphasis added).
2. Adam Bryant, There's No Need to Bat .900, N.Y. TIMES, Apr. 4, 2009, at BU2 (emphasis added). No formal program now exists to provide feedback to federal district judges for purposes of their professional development. This Article argues that creating such a program is both possible and beneficial because even the most capable judges could perform even more effectively if given more information about how they are performing. This Article proposes the adoption of a mechanism for gathering feedback that is well-known in the business world, called "360-degree" feedback. In a 360-degree system, a person receives feedback from those "below" him, such as the people he manages and his customers, from his peers, and from his own managers or supervisors. Under a system of 360-degree feedback for the judiciary, district judges would receive feedback from the attorneys and litigants who appear before them, as well as from court personnel, other district judges, and appellate judges. The purpose of that feedback would be professional development (helping judges become more effective) rather than performance evaluation (ranking and grading judges). The feedback, accordingly, would not be made public. In detailing how the 360-degree system would work, this Article examines the current sources of feedback for district judges, as well as introduces, for the first time in the judicial context, the rich academic and business literature studying professional development in the management and business world.
3. For a discussion of why the current kinds of informal feedback received by federal district judges do not eliminate the need for more formal feedback, see infra Part II.B.
4. See infra Part II.
5. See infra Part III.
6. The professional development of district judges is particularly important since parties cannot pick the judges before whom they appear. A client selects which lawyer he wants to represent him, and students, in large part, select which professors they want; market pressure from a client encourages a lawyer to improve in order to compete for clients, and similar pressure from students encourage professors to improve and compete for students. But there is no similar market pressure that affects judges to improve: the same number of attorneys will be randomly assigned to the least effective district judge as to the most effective district judge. In addition, the judicial system is "stuck" with under-performing judges since there is "no effective mechanism" for incentivizing a judge to change behavior. Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259, 1270 (2005) [hereinafter Posner, Judicial Behavior]. It is almost impossible to remove a sitting federal judge and certainly impossible to remove him for poor performance, rather than some greater malfeasance. See id.
7. See infra notes 79-85 and accompanying text.
8. The literature on performance evaluation is part of a larger collection of literature addressing other ways to improve judging. See, e.g., Judith Resnik & Lane Dug, Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575 (2006);
9. Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769 (2006);
10. Geoffrey P. Miller, Bad Judges, 83 TEX. L. REV. 431 (2004) (arguing that parties should be given some input into which judges hear their cases);
11. see also Robert Barnes, Legal Experts Propose Limiting Justices' Powers, Terms, WASH. POST, Feb. 23, 2009, at A15 (discussing a new proposal for limiting Supreme Court Justices' tenures).
12. But see, e.g., Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article in Judges, 95 GEO. L.J. 965 (2007) (cautioning against structural reforms like term limits).
13. See generally, e.g., Rebecca Love Kourlis & Jordan M. Singer, A Performance Evaluation Program for the Federal Judiciary, 86 DENV. U. L. REV. 7 (2008);
14. Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of Political Rhetoric, 56 CASE W. RES. L. REV. 911 (2006);
15. Penny J. White, Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations, 29 FORDHAM URB. L.J. 1053 (2002). At least one professor has argued that district court discretion must be reined in.
16. See, e.g., Todd D. Peterson, Restoring Structural Checks on Judicial Power in the Era of Managerial Judging, 29 U.C. DAVIS L. REV. 41, 91-105 (1995). Justice Sandra Day O'Connor argues that encouraging judicial accountability is a good strategy for protecting judicial independence.
17. See Sandra Day O'Connor, Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An Introduction, 86 DENV. U. L. REV. 1 (2008).
18. See Kourlis & Singer, supra note 9, at 19-20 (surveying those who object to evaluation programs).
19. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Are Judges Overpaid? A Skeptical Response to the Judicial Salary Debate, 1 J. LEGAL. ANALYSIS 47, 64 (2009).
20. The literature, after all, is about judicial performance evaluation, not development. See, e.g., Resnik & Dilg, supra note 8.
21. The one other proposal regarding federal district judges suggests only what could be called a "90-degree" or "180-degree" program, which does not gather feedback from the judge's peers or those sitting "above" him. See Kourlis & Singer, supra note 9, at 18-20. Kourlis and Singer also propose using both quantitative data and a selfevaluation by the judge. Id. at 29-43. Kourlis and Singer do not propose the use of peer or downward feedback from appellate judges.
22. Other performance management programs have lumped the goals of development and evaluation together. See, e.g., AM. BAR ASS'N, GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE WITH COMMENTARY app. T (2005), http://www.abanet.org/jd/lawyersconf/pdf/jpec-final-commentary.pdf [hereinafter GUIDELINES] (listing the twin goals of judicial performance evaluation to be helping judges improve and assessing "the individual judge's competence in office"). Kourlis and Singer propose two types of pilot programs, one for development and one for evaluation, but their proposal views the development pilot program as a stepping stone towards evaluation. Kourlis & Singer, supra note 9, at 29.
23. Kourlis & Singer, supra note 9, at 17-19.
24. See id. at 9-10.
25. For a general discussion of "bad" judges, see generally Miller, supra note 8.
26. See Kourlis & Singer, supra note 9, at 16-17.
27. See, e.g., id. (proposing a pilot program to evaluate the performance of district judges).
28. See id at 12-14.
29. See id. at 9-12.
30. See id. at 10-11.
31. DARLENE R. DAVIS, JUDICIAL EVALUATION PILOT PROJECT OF THE JUDICIAL CONFERENCE COMMITTEE ON THE JUDICIAL BRANCH 3 (1991).
32. Id. at 9.
33. Id.
34. Id. at 3-4.
35. Id. at 1.
36. Id. at 5.
37. Id.
38. Id. at 1.
39. Id. at 1-2.
40. Id. at 1.
41. Kourlis & Singer, supra note 9, at 19.
42. See generally AM. BAR ASS'N COMM. ON THE FEDERAL JUDICIARY, WHAT IT IS AND HOW IT WORKS (2007) (describing the ABA evaluation process), http://www.abanet.org/scfedjud/federal-judiciary07.pdf;
43. see also Sheldon Goldman, Selecting Lower Court Federal Judges on the Basis of Their Policy Views, 56 DRAKE L. REV. 729, 741-51 (2008) (discussing the evaluation process for several circuit judge candidates);
44. Laura E. Little, The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up On the Lawyers?, 10 WM. & MARY BILL RTS. J. 37, 39-44 (2001);
45. Blake Tartt, The Participation of the Organized Bar in Judicial Selection: What is Proper, and What is Improper, 43 S. TEX. L. REV. 125 (2001) (discussing the ABA evaluation process). George W. Bush temporarily ended the practice of the ABA providing guidance to the President.
46. See Neil A. Lewis, White House Ends Bar Association's Role in Screening Federal Judges, N.Y. TIMES, Mar. 23, 2001, at A13 (reporting that the Bush Administration stopped considering ABA recommendations about the fitness of the President's nominees to the Supreme Court).
47. See, e.g., RICHARD L. VINING JR., AMY STEIGERWALT, & SUSAN NAVARRO SMELCER, BIAS AND THE BAR: EVALUATING THE ABA RATINGS OF FEDERAL JUDICIAL NOMINEES (2009) (surveying ABA evaluations of judges and concluding that "Democratic" or "liberal" judges are more likely to be rated more highly qualified than are judges with other political backgrounds);
48. Posner, Judicial Behavior, supra note 6, at 1266 ("[W]hile merit is not completely irrelevant to promotion in the federal court system (even promotion to the Supreme Court, where political criteria dominate), it is not the dominant factor.");
49. Carl Tobias, Federal Judicial Selection in the Fourth Circuit, 80 N.C. L. Rev. 2001 (2002) (discussing political factors in district and circuit judge nominations);
50. Adam Liptak, Legal Group's Neutrality Is Challenged, N.Y. TIMES, Mar. 31, 2009, at A14 (discussing concerns about bias in the ABA evaluation process).
51. -1 ALMANAC OF THE FEDERAL JUDICIARY (2009) [hereinafter ALMANAC]. The Almanac includes comments about each judge in several categories: legal ability, temperament, efficiency, and fairness/evenhandednes in civil proceedings, criminal trials, and sentencing. See id. In addition, a new website called "RobeProbe.com" takes the unofficial rating a step further, allowing users to "rate" trial judges and bankruptcy judges in both the Federal and the state system.
52. See RobeProbe, About, Rate a Judge, http://www.robeprobe.com/about.php (last visited Apr. 10, 2010).
53. ALMANAC, supra note 36..
54. Id.
55. See RopeProbe, supra note 36.
56. See Posner, Judicial Behavior, supra note 6, at 1275 ("[Conventional professional criticism of judicial opinions is faltering badly as a constraint on the behavior of federal circuit judges ....").
57. WILLIAM DOMNAHSKI, FEDERAL JUDGES REVEALED 145-46 (2009).
58. -28 U.S.C. §§ 351-364 (2006).
59. There are a host of other judicial misconduct statutes. See Arthur D. Hellman, The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors, 69 U. PITT. L. REV. 189, 206-11 (2007).
60. -28 U.S.C. § 351(a) (2006).
61. Id. § 354(a)(2)(A);
62. see also Peterson, supra note 9, at 86-90;
63. Stephen Burbank, Procedural Rulemaking Under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 131 U. PA. L. REV. 283, 285-86 (1982).
64. Peterson, supra note 9, at 89.
65. See Hellman, supra note 43, at 218-20.
66. In re Complaint of Judicial Misconduct, J.C. No. 03-08-90050 (2009), available at http://www.ca3.uscourts.gov/opinarch/089050p.pdf.
67. Id. at 2 n.2.
68. DAVIS, supra note 23, at 2.
69. See FEDERAL JUDICIAL CENTER ANNUAL REPORT 11 (2003).
70. 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).
71. Id.
72. See Kourlis & Singer, supra note 9, at 12;
73. Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for ALJs, 7 ADMIN. L.J. AM. U. 589, 593 (1993).
74. See Jordan M. Singer, Knowing is Half the Battle: A Proposal for Prospective Performance Evaluations in Judicial Elections, 29 U. ARK. LITTLE ROCK L. REV. 725, 736 (2007) ("Judicial performance evaluation programs have an established history of providing relevant useful information to voters in judicial elections. Currently nineteen states, plus Puerto Rico and the District of Columbia, have formal JPE programs, in which sitting judges are periodically evaluated on their performance on the bench.");
75. INSTIT. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., UNIV. OF DENVER, SHARED EXPECTATIONS: JUDICIAL ACCOUNTABILITY IN CONTEXT app. A (2006) (surveying the evaluation process in twenty-one states and territories);
76. DAVID B. ROTTMAN & SHAUNA M. STRICKLAND, U.S. DEP'T OF JUSTICE, STATE COURT ORGANIZATION 2004, at 53 tbl. 10 (2006);
77. see also Susan M. Olson, Voter Mobilization in Judicial Retention Elections: Performance Evaluations and Organized Opposition, 22 JUST. SYS. J. 263, 263 (2001) ("Formal evaluation of judicial performance began in the mid-1970s and has since spread to at least twenty-five states plus the District of Columbia and Puerto Rico.") (citation omitted). In many states, the bar association also conducts judicial performance evaluation.
78. See ROTTMAN & STRICKLAND, supra, at 53 tbl.10.
79. See, e.g., Supreme Court of New Mexico, How We Evaluate Judges - Overall Factors, http://www.nmjpec.org/factors (last visited Mar. 26, 2010);
80. Alaska Judicial Council, Judicial Performance Evaluations, http://www.ajc.state.ak.us/Retention/retent.htm (last visited Mar. 26, 2010) [hereinafter Alaska]. The ABA also recommends evaluating judges along these broad dimensions. GUIDELINES, supra note 14.
81. See, e.g., Alaska, supra note 56;
82. Letter from John T. Broderick, Jr., Chief Justice, N.H. Supreme Court, to Governor John Lynch, Senate President Sylvia B. Larsen, House Speaker Terie Norelli, Senator Joseph A. Foster, and Representative David E. Cote (July 6, 2007), available at http://www.courts.state.nh.us/PerEval/2007-07- 03%20final%20report.pdf.
83. See ROTTMAN & STRICKLAND, supra note 55, at 53 tbl. 10.
84. Commission on Judicial Disabilities & Tenure, District of Columbia, Judicial Reappointment Evaluations, http://cjdt.dc.gov/cjdt/cwp/view,a,1263,q, 560101.asp (last visited Mar. 26, 2010) [hereinafter Commission on Judicial Disabilities].
85. See, e.g., Alaska, supra note 56.
86. See ROTTMAN & STRICKLAND, supra note 55, at 53 tbl.10.
87. See, e.g., Supreme Court of New Mexico, Evaluation Process, http://www.nmjpec.org/process (last visited Mar. 26, 2010).
88. See, e.g., Press Release, Illinois Supreme Court, Supreme Court Announces Strategies to Improve Judicial Performance of Illinois Judges (Dec. 1, 2008), http://state.il.us/court/Media/PressRel/2008/120108.pdf [hereinafter Press Release, Illinois]/ ROTTMAN & STRICKLAND, supra note 55, at 53 tbl.10 (entry for Florida).
89. See, e.g., Hawaii's State Judiciary, Judicial Performance Review, http://www.courts.state.hi.us/courts/performance-review/judicial-performance- review. html (last visited Mar. 26, 2010).
90. See, e.g., Alaska, supra note 56.
91. New Jersey Judiciary, Performance & Education Programs, http://www.judiciary.state.nj.us/education/index.htm (last visited Mar. 26, 2010) [hereinafter New Jersey];
92. Kansas State Judiciary, Kansas Commission on Judicial Performance, http://kansasjudicialperformance.org/ (last visited Mar. 5, 2010) [hereinafter Kansas];
93. see also A. John Pelander, Judicial Performance Review in Arizona: Goals, Practical Effects and Concerns, 30 ARIZ. ST. L.J. 643, 653 (1998) (describing New Jersey's system).
94. JUDICIAL EVALUATION COMM'N., TENNESSEE APPELLATE JUDGES EVALUATION REPORT 1 (2008);
95. Kansas, supra note 66.
96. ROTTMAN & STRICKLAND, supra note 55, at 53 tbl. 10.
97. Alaska, supra note 56.
98. See ALASKA STAT. § 22.10.150 (2008). Each superior court judge is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each judge before the retention election and shall provide to the public information about the judge and may provide a recommendation regarding retention or rejection. The information and any recommendation shall be made public at least 60 days before the retention election.
99. Id.
100. Alaska Judicial Council, Judicial Performance Evaluations: Retention Procedures, http://www.ajc.state.ak.us/Retention/retent.htm#RetentionProcedures (last visited Mar. 26, 2010).
101. Id. The evaluation procedure in Arizona, for another example, is quite similar. See Pelander, supra note 66, at 673-74 ("[L]awyers, jurors, litigants, witnesses, courtroom and court administrative staff all are requested to complete and return survey forms relating to superior court judges in Maricopa and Pima Counties. The current form given to attorneys asks them to rate the judge in various aspects relating to the general categories of legal ability, integrity, communication skills, judicial temperament, administrative performance, and settlement activities. The survey form provides five rating choices for each topic: unacceptable, poor, satisfactory, very good, and superior.") (footnotes omitted).
102. See BEHAVIORAL HEALTH RESEARCH AND SERVS., ALASKA. JUDICIAL COUNCIL RETENTION SURVEY 1, 17 (2008), http://www.ajc.state.ak.us/retent08/surveyrpt08. pdf.
103. Alaska, supra note 56.
104. Id.
105. Id.
106. Id.
107. See, e.g., David C Brody, The Use of Judicial Performance Evaluation to Enhance Judicial Accountability, Judicial Independence, and Public Trust, 86 DEN. U. L. REV. 115, 131-33 (2008) (illustrating possible distortions in judge elections).
108. See, e.g., Edward Prewitt, Should You Use 360 Feedback for Performance Reviews, HARV. MGMT. UPDATE, Feb. 1999, at 8 ("[T]he basic idea of 360 feedback: gathering input on employees' performance not only from managers and supervisors but also from peers and direct reports.");
109. T.V. RAO, PERFORMANCE MANAGEMENT AND APPRAISAL SYSTEMS 262 (2004) ("In this system, the candidate is assessed periodically ... by a number of assessors including his boss, immediate subordinates, colleagues, and internal and external customers.");
110. Jai Ghorpade, Managing Five Paradoxes of 360-Degree Feedback, 14 ACAD. OF MGMT. EXECUTIVE 140, 140-41 (2000) ("superiors, peers, coworkers in support areas, subordinates, internal customers of the unit's work, and external customers of the organization's products");
111. David Antonioni, Designing an Effective 360-Degree Appraisal Feedback Process, 25 ORGANIZATIONAL DYNAMICS 24, 24 (1996) ("The feedback comes from an individual's immediate supervisor and peers and, if the individual is a manager, from his or her direct contributors (subordinates)."). For a more thorough overview of the process,
112. see, for example, Anthony T. Dalessio, Using Multisource Feedback for Employee Development and Personnel Decisions, in PERFORMANCE APPRAISAL: STATE OF THE ART IN PRACTICE 279 (James W. Smither ed., 1998).
113. THOMAS S. HANCOCK, 360-DEGREE FEEDBACK: KEY TO TRANSLATING AIR FORCE VALUES INTO BEHAVIOR CHANGE 6-7 (Air War College Research Report ed., 1999).
114. See Dalessio, supra note 79, at 279 (using the phrase "upward feedback").
115. Without the perspective of customers, in addition to subordinates, 360-degree feedback "is more accurately described as 270-degree feedback, because a major data source ... is not included." Manuel London & Richard W. Beatty, 360-Degree Feedback as a Competitive Advantage, 32 HUM. RESOURCE MGMT. 353, 353 (1997).
116. See, e.g., HANCOCK, supra note 80, at 9.
117. Maury A. Peiperl, Getting 360-Degree Feedback Right, in HARVARD BUSINESS REVIEW, ON APPRAISING EMPLOYEE PERFORMANCE 70-71 (2005).
118. See, e.g., Ghorpade, supra note 79, at 141.
119. Prewitt, supra note 79, at 8.
120. See, e.g., id. ("Most Fortune 1000 companies use or have used the method . . . somewhere within their organizations."); RAO, supra note 79, at 262 ("In recent years the 360 degree appraisal has become very popular. . . . Almost every Fortune 500 company is using this in some form or the other.");
121. Ghorpade, supra note 79, at 140 ("The rapidly expanding list of 360-degree feedback users currently includes leaders of the corporate sector such as AT&T, Exxon, GE, Amoco, IBM, Caterpillar, Levi Strauss, and Shell Oil. Twenty-two of Fortune's 32 most admired companies were using upward or 360-degree feedback as of 1994. By 1996, 360-degree programs had became nearly universal among Fortune 500 companies, which spend hundreds of millions of dollars annually to support them.");
122. see also JOHN E. JONES & WILLIAM L. BEARLEY, 360 FEEDBACK: STRATEGIES, TACTICS, AND TECHNIQUES FOR DEVELOPING LEADERS 10 (1996) ("Organizations are rapidly adopting 360 feedback.");
123. Dalessio, supra note 79, at 280 (noting the "increasing popularity of multisource feedback processes");
124. Allan H. Church & David W. Bracken, Advancing the State of the Art of 360-Degree Feedback, 22 GROUP & ORG. MGMT. 149, 149 (1997) ("In the past several years, 360-degree feedback . . . [has] evolved from an innovative nice-to-have technique ... to a musthave tool for integration into the overall performance and human resource management strategy.").
125. Ginka Toegel & Jay A. Conger, 360-Degree Assessment: Time for Reinvention, 2 ACAD. OF MGMT. LEARNING AND EDUC. 297, 297 (2003).
126. Peiperl, supra note 84, at 71;
127. see also Antonioni, supra note 79, at 24 ("Companies using this form of appraisal include AT&T . . . Bank of America . . . General Electric ... and Chrysler.").
128. See ROBERT SLATER, THE GE WAY FIELDBOOK: JACK WELCH'S BATTLE PLAN FOR CORPORATE REVOLUTION 43 (1999).
129. See Antonioni, supra note 79, at 24 ("[S]ome companies, such as IBM, have used upward appraisals (a partial 360 approach) for more than 20 years.").
130. See Peiperl, supra note 84, at 69-70;
131. Antonioni, supra note 79, at 24 ("Without question, 360-degree appraisals are taking hold in American business.").
132. Peiperl, supra note 84, at 70.
133. See Dalessio, supra note 79, at 280 ("Reasons [for adoption of 360-degree systems] include the perennial issue of dissatisfaction with traditional performance appraisal....").
134. John H. Jackson & Martin M. Greller, Decision Elements for Using 360° Feedback, 21 HUM. RESOURCE PLANNING 18, 19 (1998);
135. see, e.g., Church & Bracken, supra note 87, at 150 ("In general, such systems are based on the simple assumption .. . that observations obtained from multiple sources will yield more valid and reliable (and therefore more meaningful and useful) results for the individual"). "[M]ultiple perspectives, even when contradictory, are not necessarily errors and, therefore, provide useful information" as well.
136. Sabrina Saiam, Jonathan F. Cox & Henry P. Sims, Jr., In the Eye of the Beholder: How Leadership Relates to 360-Degree Performance Ratings, 22 GROUP & ORG. MGMT. 185, 187 (1997).
137. See Prewitt, supra note 79, at 8; Peiperl, supra note 84, at 72 (explaining that "bosses may no longer have all the information they need to appraise subordinates").
138. Joy Fisher Hazucha, Sarah A. Hezlett & Robert J. Schneider, The Impact of 360-Degree Feedback on Management Skills Development, 32 HUM. RESOURCE MGMT. 325, 326 (1993).
139. RAO, supra note 79, at 262.
140. Cf. Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw. U. L. REV. 1667, 1687-88 (2008) (suggesting the government use tax incentives to encourage the use of 360-degree feedback in employee evaluation to reduce the risk of bias because of the employee's race or gender).
141. Jackson & Greller, supra note 95, at 22.
142. Dalessio, supra note 79, at 280;
143. see Hazucha et al., supra note 97, at 326 ("360degree instruments are relatively inexpensive, in terms of time, effort, and money.").
144. Jackson & Greller, supra note 95, at 22 (citation omitted).
145. See, e.g., Caroline Bailey & Clive Fletcher, The Impact of Multiple Source Feedback on Management Development: Findings from a Longitudinal Study, 23 J. ORG. BEHAV. 853, 864 (2002) (finding that managers were perceived by all rater groups to be more competent after receiving 360-degree feedback)
146. Beverly AlimoMetcalfe, 360 Degree Feedback and Leadership Development, 6 INT'L J. OF SELECTION AND ASSESSMENT 35, 38 (1998)
147. Hazucha et al., supra note 97, at 339 (finding improvement in managers' skills after receiving 360-degree feedback)
148. see also Avraham N. Kluger & Angelo DeNisi, The Effects of Feedback Interventions on Performance: A Historical Review, a Meta-Analysis, and a Preliminary Feedback Intervention Theory, 119 PSYCH. BULLETIN 254, 275 (1996) (concluding from a metaanalysis that feedback improves performance on average and in more than two-thirds of specific instances)
149. Manuel London, James W. Smither & Dennis J. Adsit, Accountability: The Achilles' Heel of Multisource Feedback, 22 GROUP & ORG. MGMT. 162,163 (1997) (discussing Kluger and DeNisi's findings).
150. James W. Smither, Manuel London & Richard R. Reilly, Does Performance Improve Following Multisource Feedback? A Theoretical Model, Meta-Analysis, and Review of Empirical Findings, 58 PERSONNEL PSYCHOL. 33, 42-46 (2005).
151. Fred Luthans & Suzanne J. Peterson, 360-Degree Feedback with Systematic Coaching: Empirical Analysis Suggests a Winning Combination, 42 HUM. RESOURCE MGMT. 243, 251-52 (2003).
152. See Alimo-Metcalfe, supra note 103, at 37.
153. See Antonioni, supra note 79, at 26 (noting that two possible purposes are development and evaluation). "[Although performance appraisal nominally has a developmental component to improve weaknesses and enhance strengths, this aspect is often incidental and suffers because the focus of managerial evaluation is on the performance of the work unit.... Thus, traditional performance appraisal may be less than adequate in development and career planning." London & Beatty, supra note 82, at 359.
154. Lauren Keller Johnson, The Ratings Game: Retooling 360s for Better Performance, HARV. MGMT. UPDATE, Jan. 2004, at 1
155. see Evelyn Rogers, Charles W. Rogers & William Metlay, Improving the Payoff from 360-Degree Feedback, 25 HUM. RESOURCE PLANNING 44, 46 (2002) ("Originally, 360 feedback was used to accelerate the growth and development of a talented participant.").
156. Jackson & Greller, supra note 95, at 21-22
157. see also Lior Jacob Strahilevitz, "How's My Driving?" For Everyone (and Everything?), 81 N.Y.U. L. REV. 1699, 1735 n.149 (2006) (noting "[t]he solid performance of various 'peer assessment' metrics, such as '360 degree' feedback, in business and education settings").
158. Antonioni, supra note 79, at 26
159. see also Peiperl, supra note 84, at 78 ("In most cases, the purpose of peer appraisal is ... to help individuals improve their performance.").
160. Rogers et al., supra note 108, at 46 ("Originally, 360 feedback was used to accelerate the growth and development of a talented participant.")
161. see Dalessio, supra note 79, at 280 ("The process empowers the employee to use the feedback to achieve growth and self-development.").
162. JONES & WILLIAM, supra note 87, at 61 ("Using multirater data in performance appraisal is controversial.")
163. Toegel & Conger, supra note 88, at 298 ("[T]here is growing concern about the migration of 360-degree assessments toward the dual purposes of development and performance appraisal.")
164. Ghorpade, supra note 79, at 141 ("The primary objective of 360-degree feedback is to develop rather than to appraise the participating organizational members.")
165. David A. Waldman, Leanne E. Atwater & David Antonioni, Has 360 Degree Feedback Gone Amok?, 12 ACAD. OF MGMT. EXECUTIVE 86, 88 (1998) ("We would suggest caution in adopting 360 appraisal. Use 360 feedback strictly for development at first.").
166. For a discussion of how 360degree feedback evolved from a tool for performance development to one of performance evaluation, see Toegel & Conger, supra note 88, at 298.
167. Jackson & Greller, supra note 95, at 22.
168. Johnson, supra note 108, at 1-2
169. see Peiperl, supra note 84, at 143
170. Waldman et al, supra note 112, at 88 ("Research has demonstrated that when ratings become evaluative rather than purely developmental, some raters (up to 35 percent) change their ratings."). One recent article that surveys the empirical literature noted that "[t]here is empirical evidence . . . that raters change their ratings when 360-degree becomes a performance evaluation tool in place of a personal development tool. More than 70% of managers in one study admitted to having inflated or deflated evaluations in order to send a signal to protect a colleague or to shock a poor performer."
171. Toegel & Conger, supra note 88, at 300 (internal citations omitted).
172. Antonioni, supra note 79, at 26 (noting that two possible purposes are development and evaluation).
173. Rogers et al, supra note 108, at 47 ("As organizations began to use 360 feedback for purposes other than individual development, the process often failed.").
174. Johnson, supra note 108, at 1.
175. See JONES & WILLIAM, supra note 87, at 59-64.
176. Jackson & Greller, supra note 95, at 22.
177. See Johnson, supra note 108, at 2 (describing such a proposal).
178. Cf. J. Mark Ramseyer & Eric B. Rasmusen, The Case for Managed Judges: Learning from Japan After the Political Upheaval of 1993, 154 U. PA. L. REV. 1879, 1929-30 (2006) (arguing that managing the judiciary with a more managerial and market-style approach would be successful).
179. See Choi et al., supra note 11, at 43.
180. Id.
181. See, e.g., Stephen P. Kaufman, Evaluating the CEO, 86 HARV. BUS. R. 53, 53-54 (2008) (discussing the benefits of detailed evaluations of CEOs).
182. Jacqueline R. Griffin, Judging the Judges, 21 LITIGATION 5, 6 (1995). The author, a state court judge, goes on to explain that "any program that offers a judge reliable feedback can materially assist in that process. Even judges who do not understand they have a need to improve or who do not really care about their performance will find the data difficult to ignore."
183. Id. at 6-7.
184. See, e.g., id. at 6
185. AM. BAR ASS'N STANDING COMM. ON JUDICIAL INDEPENDENCE, JUDICIAL PERFORMANCE EVALUATIONS IN APPOINTIVE STATES (Aug. 2003), http://www.abanet.org/ jd/lawyersconf/performanceresource/summary/appointivestates.pdf.
186. DOMNARSKI, supra note 41, at 147.
187. In the Southern District of New York, for example, Judges Lewis Kaplan and Colleen McMahon were partners at Paul, Weiss, Rifkind, Wharton, and Garrison.
188. In the Eastern District of New York, Judges Raymond Dearie and Roslynn Mauskopf were U.S. Attorneys for the Eastern District of New York.
189. See supra notes Part II.C.
190. Not all decisions, for instance, are appealed.
191. See 28 U.S.C. §2284(a) (2006) (requiring a three-judge district court panel "when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body")
192. see also, e.g., Davis v. Fed. Election Comm'n, 501 F. Supp. 2d 22 (D.D.C 2007) (illustrating a situation in which a threejudge district court panel heard a challenge to "Millionaires' Amendment" of Bipartisan Campaign Reform Act)
193. Nitke v. Ashcroft, 253 F. Supp. 2d 587 (S.D.N.Y. 2003) (panel of two district judges and one circuit judge heard motion for preliminary injunction against enforcement of the obscenity clauses of the Communications Decency Act). The three-judge panel contemplated by §2248 must, however, include one circuit judge, somewhat shrinking the pool of peer reviewers for district judges.
194. E.g., Nitke, 253 F. Supp. 2d at 592
195. see also 28 U.S.C. §2284(b)(1) (2006).
196. See DOMNARSKI, supra note 41, at 147. "Some judges, once they took to the bench, got tutoring from more experienced judges," recalled Judge Robert Grant of the Northern District of Indiana.
197. Id. at 134.
198. Press Release, Illinois, supra note 63.
199. See New Jersey, supra note 66.
200. Kansas, supra note 66;
201. JUDICIAL EVALUATION COMM'N, supra note 67.
202. See Ghorpade, supra note 79, at 141.
203. See infra Part III.C.2.
204. See, e.g., Choi et al, supra note 11, at 64.
205. Id. at 67-68.
206. See Jai Ghorpade, supra note 79, at 146 ("The problem of balancing the quantitative and qualitative information can be handled by asking the raters to provide both forms of information on the performance dimensions included in the feedback instrument.")
207. see also Antonioni, supra note 79, at 28.
208. See supra text accompanying notes 54-55.
209. AM. BAR ASS'N, supra note 56
210. see also White, supra note 9, at 1068-71 (discussing the ABA's factors).
211. A number of scholars have noted the importance of the "quality" of writing in a judge's decisions. See Choi et al, supra note 11, at 64
212. James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices, 32 FLA. ST. U. L. REV. 1015, 1017 (2005).
213. See ROTTMAN & STRICKLAND, supra note 55, at 53-55 (for example, Massachusetts evaluates new judges every twelve to eighteen months)
214. Commission on Judicial Disabilities & Tenure, supra note 59 (explaining that judges, when seeking reappointment, are evaluated every fifteen years).
215. ROTTMAN & STRICKLAND, supra note 55, at 53-55.
216. Press Release, Illinois, supra note 63.
217. Id.
218. See, e.g., Rogers et al., supra note 108, at 51 ("Coaching-or the process of using internal or external individuals to explain 360 feedback results and assist in development planning-is a critical component of an effective 360 feedback process in many organizations.").
219. See supra Part II.C.
220. See infra Part IV.
221. See supra Part II.C.
222. See generally Kourlis & Singer, supra note 9, at 25-26 (discussing ways to limit the costs of judicial performance evaluations).
223. DAVIS, supra note 23, at 7.
224. Kourlis & Singer, supra note 9, at 24-25.
225. See id. at 25.
226. DAVIS, supra note 23, at 8.
227. Id. at 9.
228. Id. at 8.
229. See Freedom of Information Act, 5 U.S.C. §552 (2006) (requiring agencies to disclose various material)
230. -5 U.S.C. §551(1) (2006) ("'[A]gency'... does not include ... the courts of the United States.").
231. IV A GUIDE TO JUDICIARY POLICIES AND PROCEDURES ch.2, §201.3.
232. Feedback from jurors and other trial-court-related personnel would become irrelevant.
233. DOMNARSKI, supra note 41, at 149
234. (quoting an interview by Wendy White with Honorable James L. Buckley, United States Court of Appeals for the District of Columbia Circuit, in Washington, D.C (Aug. 14, 1995)).
235. In 2007, only 75 cases were argued before the Court. Roberts, Jr., supra note 1, at 10.
236. The threat to separation of powers posed by a group of administratorevaluators who are primarily accountable to Congress or the President is too great to even consider this option. Further consideration of what body should be charged with carrying out the evaluation procedure is necessary. See Kourlis & Singer, supra note 9, at 39-43, 47-48 (suggesting possible configurations for group of evaluators). Any group would need training in evaluation procedures.
237. See, e.g., Daniel Klerman, Nonpromotion and Judicial Independence, 72 S. CAL. L. REV. 455, 456 (1999) ("Although nonpromotion contributes to judicial independence, promotion also has its benefits. The prospect of advancement can give judges incentives to work hard and judge wisely.").
238. For example, Judge Posner has argued that public feedback without "teeth" the inability to fire or otherwise discipline the judge - still has powerful effects: [W]hen gross incentives and constraints are removed, a space is created for ones normally of only minor significance to determine the individual's behavior .... People care about their reputation apart from purely instrumental effects; that is why rank orderings and prizes have psychological effects distinct from any career effects of being singled out from one's fellows.
239. For example, federal district judges are sensitive to the quarterly statistics compiled by the Administrative Office of the U.S. Courts showing how many cases the judge has had under advisement for more than a specified length of time - so sensitive that judges will sometimes dismiss cases at the end of a reporting period, with leave to reinstate the case at the beginning of the next reporting period, in order to improve their statistics. Judges also do not like to be reversed, even though a reversal has no tangible effect on a judge's career if he is unlikely to be promoted to the court of appeals in any event.
240. Posner, Judicial Behavior, supra note 6, at 1271.
241. See generally, e.g., Joan Humphrey Lefkow, Judicial Independence, Judicial Responsibility: A District Judge's Perspective, 65 WASH. & LEE L. REV. 361 (2008) (discussing public reactions to judicial decisions that endangered judges).
242. See supra text accompanying note 79.
243. See discussion supra Part I.
244. A large literature exists expressing concern about how judicial evaluation will threaten judicial independence. See, e.g., O'Connor, supra note 9.
245. While this exercise may be a practical impossibility, it is not a theoretically impossible one. There should be agreement about some characteristics.
246. See White, supra note 9, at 1073-74 (contrasting "legitimate judicial performance evaluation" with "illegitimate outcome-oriented evaluation"). Imagine an experiment: take ten people with widely ranging views about "good" judicial performance and lock them in a room. Tell them they will not be allowed out of the room until they can all agree on a list of characteristics that define a good judge. Whatever list they produce is the list of characteristics that should be used for judicial evaluation. The same list could be created by a panel of distinguished judges from every part of the ideological and political spectrum. It is impossible to predict exactly what list of criteria would be broadly acceptable, but the list would likely include the factors discussed at the start of this paper and in the section on development criteria. The difficulty in developing a list of characteristics by which to evaluate judges need not be a reason to refrain from trying. Rather, it should serve as a call to have frank discussions about what does make a good judge. It seems counterintuitive to select and appoint people for a position without consensus on what makes someone good at that position. There will be disagreement about some categories (e.g., how "textualist" a judge should be), and those categories may not be included in the evaluation.
247. See supra notes 64-65.
248. The breadth of the feedback collected in a 360-degree evaluation program would help mitigate potential judicial manipulation of the evaluation program. The various pulls exerted by different stakeholders would reduce the judge's incentive to favor any one group over others.
249. See supra notes 104-106.
250. See supra notes 98-102.
251. See Antonioni, supra note 79, at 26. ("[P]eers do not want the feedback they give to be used for evaluation.").
252. Possible solutions include the heavier use of objective data to verify and compare with respondent's feedback. See, e.g., Toegel & Conger, supra note 88, at 307 (providing raters with guidance and even training on how to provide feedback)
253. see Rogers et al., supra note 108, at 49.
254. Judicial pay has been the focus of much recent discussion. Chief Justice John Roberts has repeatedly called for increases in judicial salary, arguing that the judiciary is, and has been for some time, underpaid. See, e.g., Roberts, Jr., supra note 1. Judicial salaries are the only federal salaries that do not rise to keep pace with inflation. Id. at 1.
255. Other judges and commentators have also decried the current level of judicial compensation, see, e.g., Adam Liptak, On the Subject of Judicial Salaries, A Sharp Difference of Opinion, N.Y. TIMES, Jan. 20, 2009, at A14, though some commentators have noted that judges receive ample non-monetary compensation,
256. see Choi et al., supra note 11. Concern about judicial compensation has increased recently since almost all federal judges are now paid less per year than first-year associates at law firms in large cities are paid. Federal district judges make $169,300 and federal appeals court judges make $179,500, while Supreme Court justices make $208,100. U.S. Courts, Judicial Compensation, http://www.uscourts.gov/salarychart.pdf (last visited Apr. 10, 2010).
257. Judges could be awarded end-of-year, or end-of-review-period, bonuses based on their performance evaluations. Higher performing judges would receive higher bonuses. The lowest performers would receive a lower bonus, or no bonus at all. Alternatively, judges could be given annual performance-based raises. The percent increase in salary would correspond to the judge's evaluation with a better evaluation leading to a bigger increase in salary. The combination of raises and bonuses would also work.
258. The Constitution provides that judges shall "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. CONST, art III, §1.
259. If the Constitution is seen to prohibit reductions in bonuses or total compensation - that the clause has a "one-way ratchet" design, see
260. The Constitution provides only that judges shall "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. CONST, art III, §1. Once a judge has been paid $X, would the Constitution allow his pay to be "cut" below $X? Not likely, but there is at least one reading of the Compensation Clause would at least theoretically allow for the performance-based pay.
261. For instance, one could distinguish between salary and bonuses. It is unlikely that the Framers had modern-day performance bonuses in mind when they wrote the Constitution. "Compensation" may therefore refer to the core salary received by the judiciary, but not to variable "bells and whistles" such as nicer offices, better secretarial assistance, or bonuses. If that is the case, then compensation would not be "diminished" if a bonus were extended in one year and then not extended in another. This is probably not a road worth traveling.
262. For instance, Judge Posner argues that "[i]t would be downright absurd to suggest (nor does anyone suggest) that [performance measures] should be used as the basis for awarding bonuses to judges who score well on them!" RICHARD A. POSNER, HOW JUDGES THINK 150 (2008).
263. One empirical study of judicial performance and pay concluded that judicial compensation is irrelevant to most quantifiable measures of judicial performance." Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. REV. 63, 66 (2008). A second study goes farther, arguing that "increasing pay might even reduce the quality of performance."
264. Choi et al, supra note 11, at 50. Judge Richard Posner has also suggested that raising salaries might decrease overall judicial performance by making "the job a bigger patronage plum for ex-Congressmen, friends of Senators, and others with political connections, so that the average quality of the applicant pool might actually fall." Posting of Richard Posner to the Becker-Posner Blog, http://www.becker-posner-blog.com/archives/2007/03/judicial- salari.html (last visited Mar. 18, 2007). Other scholars, however, doubt whether these studies really establish that judges do not respond to changes in compensation.
265. See Liptak, supra note 179. Nor do any of these studies address variable pay. It is possible that judges respond more strongly to being paid less - or the opportunity to be paid more - than their colleagues.