Data Will Help Lawmakers Determine Judges Qualifications
Daniel Gilbert/Bristol Herald Courier
Published: March 31, 2008
Updated: March 31, 2008
At 138 years of age, Virginia’s method of evaluating incumbent judges is getting some new teeth.Published: March 31, 2008
Updated: March 31, 2008
By next year, legislators who determine whether a sitting judge is qualified for reappointment to the bench will have access to data culled from attorney surveys that rate a judge’s performance. While the measure does not subtract from the legislature’s judge-making power, it is a significant change to what largely has been a subjective way of evaluating judges.
Proponents of the Judicial Performance Evaluation (JPE) Program, approved by the General Assembly in 2005, believe the new data it generates will improve the quality of judges at all levels, and guard against purely political calculations from influencing who remains a judge. Sixteen other states have implemented similar programs, according to the National Center for State Courts.
In Virginia, the program currently sends out surveys to attorneys who appear before a given judge three times during his or her term. Respondents grade the judge on criteria ranging from fairness to demeanor and punctuality, and their ratings are tabulated into an aggregate report by a research lab.
The first two evaluations serve as a self-improvement tool for a judge, while the final is presented to legislators when the judge is up for reappointment.
Until now, lawmakers have had little hard data by which to gauge a judge’s merits. Instead, they have relied on an ad hoc network of feedback from constituents and bar associations and interviews they conduct with candidates – which one former delegate described as 10-minute, “rubber-stamp” affairs.
“I was very disappointed to see that the interviews were almost worthless,” the former delegate, Robert F. McDonnell, who is now the state’s attorney general, said in a February telephone interview. “There were generally irrelevant questions. Judges were rubber-stamped. It was a horrible way to reappoint without scrutiny.”
Then a Republican delegate from Virginia Beach, McDonnell in 2000 proposed legislation to create the performance evaluation program that will bear its first fruits next year, when evaluations on seven judges up for reappointment will be sent to the General Assembly. McDonnell, who touts the program as one of his proudest legislative achievements, believes it will curb the influence of politics in judicial reappointments by ramping up the pressure on lawmakers to vote according to a candidate’s merits.
It will make it “difficult, if not politically impossible,” for a single legislator to hold up the nomination of a judge deemed qualified – a common occurrence, according to a senior researcher in the Division of Legislative Services.
“It certainly won’t look good in the court of public opinion,” McDonnell said.
But some questions remain as to the program’s implementation. It is not clear which legislators will have access to the reports, an issue the program’s oversight commission is due to take up in June.
And while evaluations eventually will apply to judges at all levels of court, the JPE commission acknowledges the need to tailor surveys to courts with unique concerns.
Appellate court judges have comparatively little contact with attorneys and the public, while district court judges would not have the input of jurors.
In considering the different kinds of court traffic, plans are to expand the program’s survey pool to include jurors, court personnel and county department of social services staff.
There is no “magic number” of surveys that are sent out or analyzed for a given judge, according to Suzanne Fulton, the outgoing head of the JPE program and a former general district court judge in Wise County, Va.
To determine whether there are enough surveys for a judge to be statistically significant, Fulton said the program relies on feedback from analysts at the Survey and Evaluation Research Laboratory, based at Virginia Commonwealth University, which is contracted by the state Supreme Court.
“It’s never happened that VCU said there were not enough surveys,” Fulton said in an interview.
The response rate among attorneys who have received a survey tops 80 percent, Fulton said.
Because the surveys are confidential, Fulton acknowledged the potential that respondents could submit inaccurate information, but dismissed the idea that disingenuous answers would skew the data one way or the other.
As a judge for 19 years, Fulton emphasized the potential benefit to judges who “don’t get a lot of feedback.
“People are afraid to tell judges what they think, because they believe that judges will hold it against them,” she said.
Members of the General Assembly, for their part, are mindful that increasingly few of them can claim to be experts on the judiciary. A House resolution in 2000 requesting evaluation criteria for judges from the Supreme Court noted that “with fewer and fewer practicing attorneys serving in the legislature, many members do not bring personal or professional experience with the judiciary to bear on the issue of re-election.”
State Delegate Anne B. Crockett-Stark, R-Wytheville, admitted that interviewing judicial candidates was “a process that I was learning as I went. There wasn’t anybody I interviewed that I didn’t think could have done a judgeship adequately,” said the retired school teacher.
If the performance evaluations have the effect of removing some of the politics from judicial selection, that is fine with Delegate Terry G. Kilgore, R-Gate City.
Kilgore, an attorney and longtime member of the House Courts of Justice Committee, said choosing judges has always involved a certain amount of political courage.
“You make one person happy and two or three mad,” he said, noting that the “two or three mad can still participate in the political process, so you’re really not helping yourself too much.”
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