Judges in America are under siege. The most recent evidence was the group of initiatives around the country that would have fired, jailed or recalled judges.
In Amendment 40, Colorado voters were asked to approve term limits for appellate judges, forcing them into a 10-year revolving door, and in the short term firing almost 50 percent without regard to qualifications or performance. A resolution on the South Dakota ballot, JAIL4Judges, would have stripped judges of immunity. In Montana, Constitutional Initiative 98 sought to abbreviate the recall process for judges. In Oregon, Measure 40 would have required the appellate bench to be elected by district, rather than statewide, resulting in a bench more beholden to regional interests.
These initiatives would have made the legal system worse, not better. Happily, they were all defeated, but that is not the end of the story. The numbers of voters who voted for these various initiatives demonstrate a widespread discontent with the court system.
I believe that this dissatisfaction is not about one or two court cases that hit the headlines, but is rather about the system itself. Quite simply, there is a perception that the court system costs too much, takes too much time and produces inconsistent and unpredictable results – conclusions I cannot dispute.
The voters did their job by rejecting poor solutions. Those of us dedicated to improving the court system now have to do our job and find good solutions, especially making the legal process more transparent and accessable to the public, improving the data we gather about how judges work and strengthening judicial evaluation and retention systems across the nation.
I was a judge for almost 20 years – a trial judge, and then a justice on the Colorado Supreme Court. That experience, and my current job as executive director of the Institute for the Advancement of the American Legal System at the University of Denver, has convinced me that the frustration and lack of confidence in the courts stem from real problems, and the time to address them is now.
We should remake our system with a new commitment to openness and public service – a philosophy and a process the institute calls building “Transparent Courthouses.” This is nothing short of a paradigm shift, calling not only for transparency of process but also for an overhaul of mindset in the court system.
So how might a new judicial attitude manifest itself?
It should become more common to see a judge greeting jurors individually, explaining the dynamics of what’s to come in simple terms, debriefing a jury or taking part in community meetings to discuss the role of the courts in our everyday lives. In recent years, many of us have worked for systemic changes to nurture this type of more personal, open connection between judges and the community, but much more must be done.
We must also work to hold judges and the system accountable for doing what they are supposed to do: applying the law and doing it fairly, economically and courteously.
There are three ways to hold judges accountable – and help judges be accountable – for doing their jobs:
- Select them on the basis of merit;
- Evaluate them regularly against clear criteria such as demeanor, effective management of their dockets, teamwork, fidelity to the law and clarity; and
- Subject them to retention elections with full disclosure of the evaluation results.
Our first priority at the institute has been to assess judicial performance standards nationally and offer a blueprint for change. Last month, we released a report, “Shared Expectations: Judicial Accountability in Context,” which details how states can design systems to hold judges accountable for the process of judging – not particular outcomes. Properly implemented, judicial performance evaluations promote judicial accountability without offending impartiality. Perhaps most constructively, judicial performance evaluations can change the culture of a group of judges, making them more responsive and attuned to serving the public.
The good news for Colorado is that we already have the pieces in place to build the best judicial performance evaluation system in the nation. We now have one statewide and 22 local performance commissions that evaluate judges before retention elections and place these evaluations in voter guides and on the Internet. But the system must be improved. We need to build a system that the judges and the public believe in.
Let’s put comment cards in every courthouse as well as online. Any person who has an experience, positive or negative, with a judge or with court staff can fill out a card. Comments would be collated by an independent body to assure anonymity and then provided to the judge and to the chief judge for improvement and education. This data would also be available to the performance commission as additional anecdotal evidence when the judge is being evaluated.
Now, judges are evaluated only when they stand for retention: every four, six, eight or 10 years, depending on the court where they serve. Let’s institute mid-term evaluations for every judge. For these evaluations, let’s at least survey every judge and staff person who deals with that judge. Judges and staff know who the good judges are, who has problems managing a courtroom or a docket, who is arrogant and who is a team player. If the surveys are absolutely anonymous, the responses will be very valuable.
At every stage, the performance commission also needs solid case-management data about how many continuances a judge grants, how long he or she takes to resolve motions, and how many matters that judge has awaiting decision. For trial judges, we should use information from trained court-watchers – a system successfully used in Alaska – to assess courtroom demeanor. For appellate judges, the commission should focus on the quality, readability and adherence to the facts and law of that judge’s opinions. Additionally, we should include case-management data on individual appellate judges to the extent it is available. If it is not available, we should consider whether appellate judges should be evaluated, at least to some extent, on the performance of the whole court.
Given the critical role of performance commissions, it is vital that they be bipartisan, with no more than one half plus one of the members being of a particular political party.
Lastly, and perhaps most important, in order to truly make our courts transparent we must publicize the results of performance evaluations much more widely.
I believe that our vision of a Transparent Courthouse is imminently achievable, but we will need a coalition of judges, attorneys, users of the system and legislators to hasten the way. The courts belong to the people, and all members of the judicial branch are public servants.
Judges are not accountable to the will of the majority, for that would tip the delicate balance of our constitutional system of government, but they are clearly accountable to the users of the system and to the taxpayers for providing an efficient, effective, consistent and fair process.
On Election Day, Americans voted down an array of sensational and simplistic initiatives. Let’s not make the mistake of assuming this was a vote for the status quo.
Rebecca Love Kourlis, a former justice of the Colorado Supreme Court, is executive director of the Institute for the Advancement of the American Legal System at the University of Denver.
