When a judge is weighing the merits of a case, the popularity of her decision should be the last thing on her mind. And when casting a ballot for a judge, performance, not political issues, should be a voter's first concern. Yet, outcome-based judicial evaluations, or issue-specific "judicial report cards," such as those published by various Chambers of Commerce and numerous other interest groups, threaten elected judges with their jobs for making unpopular decisions. In doing so, they undermine judicial independence, one of the essential features of American government.
The inspiration and framework of our government demands and depends upon judges ruling independently and dispassionately. In the Declaration of Independence, Thomas Jefferson charged King George III with violating judicial independence by making judges' salaries "dependent on his Will alone." Today, we see so-called "activist judges" threatened, or even removed from the bench, for deciding hard cases involving hot button issues such as capital punishment, abortion, gay marriage, or health care. The divisive nature of these cases guarantees that the presiding judge will be viewed as an "activist" by one group or another. These are cases where judicial independence matters most, and yet they are the issues most often "graded" by interest groups.
Most states elect some or all of their judges. Since judges are elected just like other politicians, aren't they also accountable to the electorate? Not quite. Judges are accountable, but not like other elected officials. Legislative and executive branch elected officials must advocate for their constituents' interests -- or risk being voted out of office. Judges, on the other hand, are expected to remain independent from specific voter interests. Instead, they are held accountable to the constitution, statutes, common law, precedent set by higher courts, ethics rules, and judicial performance standards. Judges should come under fire if and only if they violate these standards.
To be sure, judges must be evaluated. The American Bar Association, along with several other organizations, advises that independent commissions evaluate judges on the basis of several key factors: legal knowledge, fairness, communication skills, professionalism, and administrative abilities. In other words: Do they know the law? Do they apply the law to the facts of the case without bias? Do they explain that application clearly? Do they treat all persons with dignity and respect? Do they manage to do all of this while administering courtroom logistics? If a judge fails in any of these respects, a voter should seriously consider replacing her.
Chicago Appleseed Fund for Justice, along with the Chicago Council of Lawyers, recently adopted this model in forming the Judicial Performance Commission of Cook County -- a committee of lawyers and laypeople who evaluate sitting judges. The results are published for voters, and also provided to administrative judges who assign judges to specific courts. For several decades, Chicago Appleseed and the Chicago Council of Lawyers have collected and disseminated judicial evaluations of Cook County, IL judges -- now available at voteforjudges.org/. These evaluations are an essential way to improve the quality of our elected judiciary without compromising judicial independence.
But what if you strongly disagree with rulings made by otherwise competent judges? Voters have several options other than impeachment, which is properly reserved for "high crimes and misdemeanors," and not unpopular decisions. A constitutional amendment, change in the law, or appeal to a higher court are all valid and effective options for influencing the outcome of future decisions. Directly removing judges is a shortcut that undercuts judicial independence.
Judicial independence, in the words of former Chief Justice of the United States, William Rehnquist, "is one of the crown jewels of our government." Without this jewel, we would lack numerous civil rights which, while authorized by the constitution, were not popular with a majority of voters. Rulings bound by interest groups and not law would also lead to extraordinary costs of doing business due to unpredictable interpretations of consumer, contracts, real estate, and environmental law.
Groups with policy agendas should take their gradebooks to the legislature, not the judiciary. Judges are empowered to interpret the law, and should do so without fear of personal or professional retribution. If advocacy organizations do not like the outcome of a case, they should file an appeal or lobby for a new law -- not upend the checks and balances of government.