Comments on the White, Caufield, and Tarr articles.

• Author: Benton, Duane
• Position: Response to articles in this issue, p. 573, 605, 635 - Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

These three articles are valuable additions to the literature on retention elections. I am honored to comment, understanding I was chosen because I have survived merit selection (both as an applicant and as chair of the commission), a retention election, federal appointment, various roles in partisan elections, and an undergraduate political-science, voter-behavior education.

1. JUDICIAL PERFORMANCE EVALUATIONS

   In her article, Justice White makes an eloquent plea for judicial performance evaluations. (2) More information is better, so the goal is laudable. She acknowledges that evaluations are meaningful only if they meet three criteria: "critically designed, appropriately administered, and widely disseminated." (3) Each step is a challenge.

   First, as to design, recent scholarship indicates that empirical evaluation of judges is difficult. (4) What Justice White advocates is qualitative evaluation. Most qualitative evaluation uses the ABA criteria, which are bland and generic. Proponents need to be more creative. To rate professionalism and temperament, they should consider asking, "Is the judge more dignified/courteous/patient/controlled/fair-with-unrepresented-people than Judge Judy?" While 57% of Americans cannot name a Supreme Court Justice, (5) Judge Judy--watched by millions daily--is currently the top show in daytime television, ahead of Oprah Winfrey and Wheel of Fortune. (6) Comparisons to Judge Judy are not trivial, because one of the most important determinants of public perception of courts is (in poll-speak): "What happens during TV judge programs." (7)

   As to a judge's legal ability, proponents should consider asking, "Does the judge have the legal ability of the best lawyers?" Half the public believes that the best lawyers are not selected as judges, one-fourth has no opinion, and only one-fourth agrees that the best lawyers are selected as judges. (8)

   I suspect that "Judge Judy" and "best lawyers" questions would make demeanor and legal knowledge more relevant to the average voter. Proponents can probably think of snappy ways to operationalize the other ABA criteria also.

   Second, information gathering for evaluations must be appropriate. Here the concern is the cost of the information, particularly the effect on the process of judging. The best information, according to Justice White and others, comes from anonymous reports, including those from other judges and court personnel. These inquiries can harm the frank and collegial communication required in (at least) appellate courts and, as Professor Caufield notes, may change the behavior of any judge. (9)

   Third, evaluations must reach and be useful to voters. The few states that mail evaluations to each voter--or maintain them on a website--should be applauded. Although Professor Caufield cites optimistic assessments, I find more believable the studies concluding that, even in these few states, voters do not take time to read the evaluations. (10) Again, more pizzazz in design and presentation would increase the public's use of evaluations.

2. RETENTION ELECTIONS

   In her article, Professor Caufield defends retention elections as a "workable compromise" that is superior to contestable elections. (11) Professor Tarr counters that they have not accomplished the purposes of depoliticizing judicial selection, reducing fundraising and negative campaigning, and improving voter choice. (12) These two articles generally differ in perspective on the same facts and studies: Professor Caufield says that retention elections do significantly reduce overt partisanship and fundraising or negativity, while Professor Tarr says that retention elections do not significantly affect political influence and fundraising or negativity.

   Although Professors Caufield and Tarr differ most on voter choice, they do not represent the extremes. The strongest advocates of retention elections intended that they would be nearly meaningless:

   The historical examination has revealed that retention elections were never designed to promote those democratic principles. Rather, they were designed to allow qualified judges to serve long terms with only a modest amount of direct accountability. Indeed, those who developed the concept preferred life tenure, but they acquiesced to political realities and allowed the public an opportunity to remove judges in extreme circumstances. Clearly removal was perceived as the exception, not the rule. Thus, the facts that voters do not...