But it appears there’s a horse fly in the emollient.
On the one hand are allegations of bias inherent in the evaluative methodology. And on the other hand, there’s concern that some lawyers may be targeting judges they disfavor, ignoring the requirement that they only evaluate jurists who they know and in whose courtrooms they regularly appear. The solution? Some say it’s to expand the pool of evaluators.
Juice vs. Justice?
Article 6 of the Nevada Constitution deals with the state judiciary and an Article 6 Commission created in 2006 by the Nevada Supreme Court was tasked “to review and consider all aspects of the court system within the state of Nevada.” It’s this Commission that’s making the recommendation to develop additional reliable sources of information for judicial evaluation programs.
Although retiring Nevada Supreme Court Justice Bob Rose said at the time that the work of the Article 6 Commission had already been planned “before the Nevada judicial system’s excoriation by the Los Angeles Times,” the timing was undeniable. See reviewjournal.com — News – Commission begins discussing ways.
The series of investigative articles, which ran in the Los Angeles Times that summer of 2006 were at the least, highly embarrassing. The paper made its case for the purported existence of a pay-to-play or “Juice vs. Justice” judicial system in Las Vegas. See In Las Vegas, They’re Playing With a Stacked Judicial Deck and For This Judge and His Friends, One Good Turn Led to Another.
So in this context, the Commission also took a comprehensive look at judicial evaluations as part of its broad view of the judicial system and its recommendations. The result is a turn toward a new direction, which is the introduction of multiple data points as additional sources so as to improve judicial evaluations in Nevada.
Opening the tent.
A report in the Las Vegas Review-Journal says the Court wants to let more people join in evaluating judges, as”there are concerns regarding unintended bias and attorney abuse.” The Commission wants to open the tent and let more evaluators inside.
In other words, judicial evaluations conducted in the state’s 2 largest counties ought to be expanded to include more sources of information than just lawyers. Indeed, the recommendation is that the surveys in Washoe County in the northern part of the state and Clark County in the south, should also include staff, jurors, litigants, jurors and even other judges.
The ABA’s Black Letter Guidelines for the Evaluation of Judicial Performance already recommend that multiple sources be used whenever feasible. And specifically, under its Methodology Guidelines offers up potential sources of information for trial judge evaluations, which “include attorneys, jurors, litigants, and witnesses who have appeared before the judge; non-judicial court staff, social service personnel, and law enforcement officials who have had regular contact with the judge; and appellate judges who have reviewed the judge’s decisions.”
Keeping things transparent.
The Review-Journal‘s Editor, Thomas Mitchell, thinks the chief driving force in tinkering with the current evaluations is Senate Joint Resolution No. 2,. The resolution is the state legislator’s move to effectuate a Nonpartisan Court Plan also known as the Missouri Plan for judicial selection and retention instead of the current system of voter-elected judges. See How should we evaluate our judges for the voters?
But in an editorial last month entitled, Voters need basic data about our judges, not excuses, Mitchell makes a more persuasive case for the Article 6 Commission, which is that the courts should disseminate to the public the objective data they already have about the judiciary.
Well ahead of any decision to conduct its own surveys supplanting the one done by his paper, Mitchell argues for more transparency. The public needs to know, for example, about, “Simple things like reversal rates, recusal rate, peremptory challenges, caseload management, number of cases handled, length of time to issue a judgment, hours worked, number of days worked at home in a terry cloth bathrobe, etc.”
On expanding the pool of evaluators.
In September, I blogged about the Free Speech constraints on lawyers and how Lawyers Can’t Say Unkind Things About Judges at least, not without possible adverse consequences. The reality is that without the anonymity of judicial evaluation surveys, lawyers are unlikely to share their insider’s knowledge of the courtroom.
Under Ethical Rule 8.2, (a), “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer.” Lawyers should not say anything unless they know it to be true.
The purpose of the Rule is to promote “the fair and independent administration of justice.” Indeed, the Comment to the Rule encourages lawyers “to continue traditional efforts to defend judges and courts unjustly criticized.”
While it may be laudable to enhance the reliability of the judicial evaluation process by adding additional sources of information, it should only be done if these additional survey respondents are allocated a proper weight. The fact remains that only lawyers who regularly appear in front of a certain judge are going to be uniquely qualified in evaluating his or her judicial performance in such areas as “legal reasoning ability, knowledge of substantive law, knowledge of rules of procedure and evidence and keeping current on developments in law, procedure and evidence.” These are criteria set forth in the ABA’s aforementioned guidelines for judicial evaluations. And I don’t know how a nonlawyer could weigh in on such criteria.
Now this isn’t to say that there isn’t potential value in soliciting feedback from non-judicial staff, law enforcement personnel, witnesses, jurors and social service workers with respect to the judges they know and in whose courtrooms they have interacted. Such sources can have a lot to say, especially on such important criteria as “avoidance of impropriety, treating people with dignity and respect, absence of favor or disfavor toward anyone, fairness, courtesy, patience, self-control and the promotion of public understanding and of confidence in the courts.” All of these are part of the same ABA criteria.
But the addition of multiple sources to the process must not serve to either dilute or distort the weight of the evaluative contributions of lawyers.
Considerations on bias.
Finally, as a part of the Article 6 Commission’s moves toward greater inclusion, UNLV Professors Rebecca Wood and Sylvia Lazos raised concerns about gender and racial bias. In their report, Gender & Race Bias in the Proposed Judicial Performance Evaluations: Some Preliminary Findings, they asserted, “Female and minority judges are the most likely to be evaluated harshly, even when the JPE system is well designed, because of unconscious biases.” See the Report at SSRN-id1556011.pdf.
Last month, Senator Harry Reid (D-Nevada) said as much when he took the American Bar Association’s Ratings Board to task for the low ratings given his judicial nominee, Las Vegas Attorney Gloria Navarro, See Sen. Reid Critical of ABA Judicial Nominee Evals.
Besides telling them “to get a new life,” the annoyed Reid also added, ‘Let’s get somebody on the court that has not been a judge.’ They need to do more than thinking of themselves as these people who walk around in these robes in these fancy chambers.”
Perhaps its wasn’t accidental but with the ABA Rating Board’s low marks of Navarro, a Hispanic female, and Reid’s accompanying outburst, the present discussion about bias toward women and minorities by judicial performance evaluations is a timely one.
Ultimately, it may be that the Commission’s recommendations toward enhancing the judicial evaluation system won’t fully resolve the ongoing concerns over the current system. But if a decision is ever made to broaden the breadth of survey respondents, it must not come at the expense of diluting its greatest value, which lies in promoting judicial self-improvement and an informed electorate.
And this is done by giving lawyers the overarching role in the process, as they are the ones that know judges best and are best equipped by training and experience to judge those who also judge.