Approximately 25% of voters who go to the polls do not cast any vote in the judicial contests.
Approximately 80% of the electorate cannot even identify any candidates for judicial office.
Easiest Way to Evaluate Your Local Judges
These are atrocious numbers and highlight a long-neglected problem in our government. THE JUDICIAL BRANCH IS 1 OF 3 CO-EQUAL BRANCHES OF POWER, and yet no one knows anything about these candidates.
There are essentially two kinds of judicial evaluations: those which are “neutral”—that is, those which seek to evaluate and recommend candidates based only on competency and qualifications; and those which are “partisan”—that is, those which have a political or ideological bias and evaluate and recommend candidates based (at least in part) on their perceived political or ideological beliefs. This page only covers “neutral” evaluations, since the results of partisan evaluations are relatively predictable in any given race—the partisan evaluator will support the candidate of one party and not support the candidate of the other party.
Neutral evaluators usually base their recommendations on surveys of attorneys, jurors, other members of the public who have come into professional contact with the judge, questionnaires the judge fills out for the evaluators, and/or personal interviews conducted by the evaluators.
If your lucky you live in a district that has a Judicial Performance Review set up to evaluate its judges. In Maricopa County where I live, we have an excellent one and the best part is, it is available free of charge, online to the public. I check it out every voting cycle and make notes on who to vote out when I head to the ballot box. The criteria voted upon are done so by selected lawyers who try cases in these courts as well as a panel of overseers who keep an eye on the Judicial Staff. Here are a few Boards available to constituents living in these districts listed below.
|Evaluator||Location||Judges Evaluated||Judges Receiving “Retention” Recommendation||% Receiving “Retention” Recommendation|
|Know Your Judges||CO||135||133||99%|
|Vote For Judges||Cook County, IL||69||66||96%|
|Arizon Commission on Judicial Performance Review||AZ||64||64||100%|
|Alaska Judicial Council||AK||28||27||96%|
|Kansas Commission on Judicial Performance||KS||65||65||100%|
|New Mexico Judicial Performance Evaluation Commission||NM||75||74||99%|
|Tennessee Appellate Judges Evaluation Report||TN||5||5||100%|
|Utah Judicial Council||UT||126||126||100%|
It is beyond the scope of this website to search out and list every Judicial Review Board here, but I’d urge you to see if your county provides one by:
- Enter into (duck-duck-go) your county name, coupled with
- Keywords such as s “Judicial Review” “Judge Evaluation” “Judicial Performance Review”
This should bring up any available websites. chance are there may be non-government entities who monitor judges as well. JUST BE CAREFUL OF POLITICAL BIAS.
Things to consider when voting for judges
A. Prior experience
A judge’s prior educational and professional experiences are certainly relevant qualifications for a voter to consider. They also have the added benefit of being relatively easy for lay voters to understand—how long a candidate has already served as a judge; how long they practiced law prior to that time; whether they worked for a prosecutor’s office or a large law firm; and so on. Unfortunately, the backgrounds of most judicial candidates are relatively similar to one another—there is very little that stands out as unusual or extraordinary in any of the candidates’ prior education or work experience. Furthermore, what differences do exist will tell a voter very little about what kind of judge the candidate will end up being if elected. Certainly it is a fair assumption that prior judicial experience will make a judge more qualified to continue serving on the bench, and perhaps (but only perhaps) a voter can learn something about a candidate’s potential decisions based on whether the candidate worked as a prosecutor or a defense attorney. Overall, however, this background information is not especially helpful.9
One (perhaps) surprising aspect about judicial candidates—and indeed, most state appellate court judges—is the types of law schools they attended. Although these men and women are at the top of their profession, it is rare to find a judge that went to one of the so-called “elite” law schools. In fact, of the 44 candidates for appellate judges in Ohio in 2010, only 12 graduated from a law school ranked in the top fifty in the U.S. News and World Report survey. On the other hand, out of the same 44 candidates, all but 7 graduated from a law school in the state of Ohio.
B. Endorsements by neutral associations
As in any other election, there are various organizations that provide endorsements or recommendations for judicial elections. Some of these organizations—such as newspapers and local or state bar associations—are relatively neutral as to the ideology or judicial philosophy of the candidate. Others are specifically issue-oriented, such as the chamber of commerce, various labor groups, or political associations trying to elect judges with certain values. We will discuss the “neutral” endorsing bodies in this section and consider the issue-oriented endorsements in the next section.
Endorsements by bar associations have a number of benefits. These organizations are able to spend time researching and interviewing the candidates; thus, they will know much more about each candidate than an average voter or even an extraordinarily diligent voter. A local bar association, for example, will typically send multi-page questionnaires to the candidates, conduct interviews of each candidate, and survey other attorneys about the candidate. (For a more detailed description of how these evaluations work, see Other Judicial Recommendations in the “Facts” section. Furthermore, the members of these organizations tend to be lawyers themselves, with the knowledge and skills necessary to evaluate each candidate’s disposition, intelligence, writing ability, legal acumen, and other relevant qualifications.
The resulting endorsements or recommendations, however, tend to be so objective that they border on unhelpful. Usually, a bar association will classify a candidate as “highly qualified,” “qualified,” or “unqualified”—with very few candidates receiving the latter classification. Often voters are given the choice between two “qualified” candidates, which in reality does not really assist them in making a decision.
In the end, bar associations can play an important role in screening candidates—so that if a clearly unqualified candidate seeks to become a judge, or a patently incompetent judge attempts to retain his or her seat, the bar association can alert voters to the fact. But in practice, even this role seems exaggerated: surveys have shown that only 15% of voters know about bar association recommendations, and studies conducted after the elections show that they have no influence on whether a judge gets re-elected—that is, a judge who receives an “unqualified” recommendation, is just as likely to be retained as a judge who receives a positive recommendation.10
Newspaper endorsements are more useful, of course, because they will invariably recommend one candidate over another. As with bar associations, however, most newspapers seem to focus on a candidate’s qualifications and background more than their ideology or judicial philosophy. One the one hand, it is useful for voters to get this information from an organization with the resources to delve more deeply into the qualifications of the candidates; on the other, if a voter wants information about a candidate’s substantive legal positions, newspaper editorials are unlikely to help.
But the true problem with recommendations from these neutral organizations is not that they offer too little help, but rather that they have the potential to offer too much help. If we expect voters to simply check to see what the “experts” think about each candidate and then vote accordingly, it is not clear why we have the voters participate in the process at all. Instead, it would be more efficient to have a merit selection system (as some states do) where the state bar association recommends candidates directly to the governor. States that choose to have lay voters select their judges obviously believe that voter participation adds something of value to the selection process, and that must mean that voters are meant to do more than simply check with the experts and vote along with their recommendations.
C. Endorsements by policy-oriented associations
Other, more partisan organizations also offer endorsements and recommendations in judicial elections. Some of these, like the chamber of commerce or the AFL-CIO, are groups whose primary purposes have nothing to do with judicial elections, but who will lend their name to support a specific candidate in a specific election. For the most part, these endorsements follow the expected party line: pro-business groups tend to endorse Republican judges, while pro-labor groups tend to endorse Democratic judges.
More intriguing are the groups whose sole purpose is to provide recommendations in elections, including—and sometimes exclusively—judicial elections. For example, Ohio Election Central <http://www.ohioelectioncentral.com>, which bills itself as “A Project of Citizens for Community Values,” provides recommendations for conservative voters for every level of local election in Ohio, including judges. Similarly, Judge Voter Guide< http://www.judgevoterguide.com> provides recommendations for conservative voters in judicial elections in the Los Angeles region. Judge Voter Guide sends all the questionnaires to all the candidates it reviews, asking questions such as: “The California Supreme Court has heard oral arguments to legalize same sex marriage in California. As a judge, how would you go about determining how to rule?”
These policy-oriented recommendations are transparently political—they see judges as policymakers, and they seek to educate their audience as to which judges are more likely to vote in the way that is favorable to their political ideology. However, they are only useful to a voter who shares the same ideology as the recommending organization. They also tend to be relatively one-dimensional in that the recommending organization may only look at one political issue when evaluating the candidates—whether the candidate is likely to support worker’s rights, for example, or whether the candidate will support “traditional family values.” The questionnaires sent out by these organizations could also be an unreliable gauge of how the candidate will actually rule in any given case, since almost no candidate will (or should) specifically state how he or she will vote on a given issue.
These issue-oriented endorsers make a significant assumption which the neutral endorsers do not make: they treat judges—especially appellate judges—as policymakers, not just neutral interpreters of the law. This is a somewhat controversial view of judges—many judges will argue that their job is merely to interpret the law, and not to make policy judgments. But most scholars and lay people would accept this assumption, and it is borne out by quite a bit of data showing that most judges vote in predictable patterns on given issues. (See Party Affiliation as a Predictor of Judicial Voting Patterns <background_2_party_affiliation.php> in “Background Information” as an example). The issue-oriented endorsers lose credibility by pushing their own agenda when gathering and presenting data, but their underlying assumption is still valid: judges on the bench do indeed make predictable policy choices, and these policy choices can guide voters who are trying to choose between two judicial candidates. There are two objective ways to present a judge’s political leanings to voters: based on judicial ideology or philosophy, or based on specific political issues. We will consider these in the next two sections.
D. Judicial philosophy
If judges are seen as policymakers, it is somewhat easier to see what voters might add to the selection process. Voters in a certain jurisdiction may prefer a certain type of judge—conservative voters may want a certain type of judge, while liberal voters may want a different type of judge. Many voters will follow this impulse by voting as they do in other elections in which they know little or nothing about the candidates—by voting along party lines. Unfortunately, the labels “Democrat” and “Republican” are not necessarily helpful in understanding how judges decide cases. Although many voters have an accurate idea of what it means to be a “Republican” state senator or a “Democratic” city councilman, it is harder to define what it means to be a “Democratic” or “Republican” judge.
In other words, judicial candidates need their own sets of categories and descriptors. Luckily the legal academy—and judges themselves—have come up with many different ways to categorize judges and describe their legal philosophy—there are textualists, for example, who seek to only interpret the plain language of a statute and will not attempt to determine, much less apply, the legislative purpose of the statute. (See Glossary of Judicial Philosophies <background_3_glossary.php> in “Background Information” for more details).
But using these categories raises a serious problem of translation, since voters may not truly understand what it means to call a judge a “textualist.” Other terms that are used to try to describe judges to voters, such as whether a judge is an “activist” or “soft on crime” are misunderstood at best and intentionally manipulated by opposing campaigns at worst. Furthermore, in many cases it is difficult to determine what a judge’s “judicial philosophy” actually is—few judges will openly admit to having an overarching judicial ideology, and scholars and commentators may disagree as to how to categorize each judge. Thus, anyone wishing to educate voters about a candidate’s judicial philosophy faces two problems: first, learning enough about a judge to categorize a candidate as a certain type of judge; and second, bridging the gap between the legal meaning of the category and the practical implications of the policy in order to present a candidate’s judicial philosophy to the voters in a comprehensible and meaningful way.
There is one other problem with using a candidates’ “judicial philosophy” to educate voters—most voters do not truly care about what that philosophy might be. Academics may enjoy debating whether a judge should consider the joint committee reports found in legislative history when interpreting the meaning of a statute, or whether a judge should give a high level of deference to an administrative agency, but these issues are not particularly interesting—or relevant—to the average voter. Instead, voters are likely to care about results on particular issues. In cases involving criminal defendant’s rights, does this judge tend to vote to protect the rights of the accused, or does she vote to enhance the powers of the police? Does the judge tend to interpret the law to encourage individual plaintiffs who seek damages against large corporations, or does he tend to protect the corporations from such lawsuits?
E. Evaluating prior voting record
Luckily, this final critique of using “judicial philosophy” as a guide also provides us with a possible solution to the problem of educating voters. If voters care about results, we can provide them with the specific results a judge is likely to give them on specific issues. And although judges are understandably reluctant to provide information about how they would vote on certain issues, they necessarily leave a track record with every case they decide, just as legislators leave a paper trail with the votes they cast in the legislature. By collecting data on how these judges vote, we can begin to perceive patterns in how they tend to vote in certain kinds of cases, and by communicating these patterns to the electorate, we can ensure that voters are making informed decisions about how they want their judges to vote in cases where the law may be ambiguous or unsettled. (In the next commentary <commentary_3_website_criteria.php>, we describe the method we use to categorize and record these votes—and we invite suggestions as to how to improve our methods.)
Unlike the endorsements by neutral groups such as state bar associations, using a judge’s prior record gives the voter an actual role to play in the election. Rather than simply rubber-stamping a decision made by the “experts” that a certain judge is qualified, voters can decide for themselves whether a judge’s decisions are consistent with the voters’ political ideology. And unlike the endorsements made by policy-oriented associations, the information is collected and presented in a neutral, unbiased manner, and voters can receive information on voting patterns in many different types of cases—criminal procedure, personal injury, challenges to the tax law, employment discrimination—not just the one or two “values” issues which the policy-oriented associations focus on (and which make up a very small percentage of the cases that a judge actually votes on).
The danger to this method, of course, is that judges will become little more than politicians, who are evaluated on the popularity of the policy decisions that they make instead of the quality of the legal analysis they conduct. There are two responses to this critique. First, judges in most cases are bound by the law to reach a certain result, and therefore the majority of decisions a judge makes are unaffected by his or her ideology or policy preferences. If a particularly partisan judge ignores the law in order to reach a specific result, he or she will almost certainly be outvoted by the other judges on the panel—and if not, the decision will certainly be overturned on appeal. So the judicial system provides an effective check on judges who may be tempted to reach decisions for political rather than legal reasons. But more fundamentally, it seems a little late to worry about the risk that judges will turn into politicians. Thirty-nine states require at least some of their judges to stand for popular election, a strong majority of Americans consistently tell pollsters that judges should be elected. This means that judges in these states are already politicians—politicians with a different role to play than legislators or executives, but politicians nonetheless. And if we expect the voters in these states to make informed decisions about the type of judge they would like to have on the bench, voters should know how the judges are likely to vote in those close cases where the law gives them the leeway to show their policy preferences.
Here is a great article written by: Charles E. Lundberg is a fellow of the American Academy of Appellate Lawyers and an adjunct professor at University of St. Thomas. It was written specifically for Minnasota elections but applies equally to most states.
An easy guide to voting for judges
By CHARLES E. LUNDBERG OCTOBER 20, 2008 — 3:52PM If you are a regular reader of this page of the newspaper, it’s a good bet you already know for whom you will vote for President, for U.S. Senator, for Congress, and probably for state legislature as well. But unless you are a lawyer — or otherwise have some special reason to know something about appellate judges — it’s probably an equally good bet that you have no idea who to vote for in the contested appellate judgeships that will be on your ballot on November 4th. You may not even know who’s running.
Every two years, several appellate judges must run for election. In recent years, at least one of these judges is challenged, and there is a contested judicial election. This year, there are three: Supreme Court Justices Paul H. Anderson and Lorie Skjerven Gildea and Court of Appeals Judge Terri J. Stoneburner are running in contested races.
What does the average citizen know about whether a particular appellate judge should be returned to the bench or returned to civilian life? Usually, very little. Hence, this short primer on how to vote for appellate judges. It’s actually very simple. There are two ways to do it:
Option one: Consult with an experienced appellate lawyer — someone who regularly practices before the Minnesota appellate courts, and is therefore well-qualified to help you evaluate the judges.
Option two: If you don’t know any experienced appellate lawyers, then follow this two-step process:
STEP 1: Find the “incumbent” label on the ballot for each race. By statute, all ballots for judicial races — and only judicial races — must show an “incumbent” designation if an incumbent judge is running. Most observers believe the “incumbent” label favors the incumbent, based on the assumption that voters who know nothing else about the candidates are likely to view an incumbent as the safer course. On the other hand, there are apparently a significant number of Minnesota voters who habitually vote against the incumbent judge. In almost every race in recent memory, the challenger has uniformly received a substantial portion of the vote — usually in the 35 to 45 % range — even where the challenger is unquestionably unsuited for the bench.
STEP 2: Vote for the incumbent, unless there is a darned good reason not to. That’s what experienced appellate lawyers recommend. For the past several years, whenever there has been a contested appellate judgeship, more than 100 of the top appellate lawyers in Minnesota have evaluated the candidates and publicized their conclusions. These lawyers have both the unique qualifications and the professional responsibility to candidly assess sitting appellate judges. They include members of the state bar appellate practice section, the amicus curiae committees of both the plaintiffs and defense bar, the American Academy of Appellate Lawyers, and attorneys designated appellate law “SuperLawyers” by Minnesota Law & Politics. This broad and diverse group of appeal specialists (who rarely agree with each other on anything else) has overwhelmingly supported the incumbent judges on the ballot. This year 115 appellate lawyers in Minnesota support the election of Justices Anderson and Gildea and Judge Stoneburner.
There are several reasons for this. Generally speaking, appellate judges learn and improve and get better at the job over time. If an incumbent appellate judge is doing a good job handling appeals, there should be a presumption in favor of his or her election, absent some compelling reason to replace that judge with the challenger.
Second, with rare exceptions, attorneys who run against incumbent appellate judges are normally not as well-qualified or suited to the office as the incumbent is. That’s just an empirical fact. All one needs to run for appellate judge is a valid law license and a check for the filing fee. The absence of experienced appellate lawyers supporting a challenger should speak volumes.
Someday, no doubt, it will happen — there will be a challenger who is more qualified than the incumbent. Here’s how you will know it when it happens: First, an extraordinarily well qualified challenger will file for office. Second, a sizeable number of appellate lawyers will support the challenger. Unlike any recent election, and unlike this year, the incumbent will not receive the support of the overwhelming majority of the appellate bar. Third, the mainstream press will make note of this curiosity, and likely will also support the challenger. Until that happens, voting for the incumbent is the best guideline.Charles E. Lundberg is a fellow of the American Academy of Appellate Lawyers and an adjunct professor at University of St. Thomas.