Who Watches the Watchmen?

• Published date: 01 January 2010
• DOI: 10.1177/0095399709349698
• Author: Richard C. Kearney,Sharon Paynter
• Date: 01 January 2010

Administration & Society

41(8) 923 –953

© 2010 SAGE Publications

DOI: 10.1177/0095399709349698

http://aas.sagepub.com

Who Watches the

Watchmen? Evaluating

Judicial Performance in

the American States

Sharon Paynter1 and Richard C. Kearney2

Abstract

Scholars and human resource practitioners agree that effective performance

appraisal systems have clear objectives, reliable and valid appraisal methodology,

separation of personal judgments from job-based performance assessments,

acceptance by employees, and leadership commitment. Using data from state

reports, surveys, case histories, personal interviews, and judicial performance

appraisal studies, this article juxtaposes judicial performance evaluation (JPE)

and the criteria for effective appraisal systems to address the question of

whether judicial independence can be preserved when judges’ performance

is systematically evaluated by multiple raters. The authors conclude that

JPE is an effective performance appraisal tool that can satisfy the need for

accountability to the public while protecting judicial independence.

Keywords

judicial performance evaluation, court reform, performance appraisal,

performance evaluation

1East Carolina University, Greenville

2North Carolina State University, Raleigh

Corresponding Author:

Richard C. Kearney, School of Public and International affairs, North Carolina State University,

Raleigh, NC 27695-8102

Email: kearney@chass.ncsu.edu

AAS349698AAS

924 Administration & Society 41(8)

The Setting: Independence and

Accountability in State Judicial Systems

The American judicial system is grounded in two essential tenets: judicial

independence and accountability. Judicial independence requires that judges

are able to decide cases without bias relying only on the law and facts pre-

sented. The Constitution of the United States and, perforce, state constitu-

tions, guarantee the basic rights of individuals including access to, and the

impartiality of, the judicial system. Judges should adjudicate freely, without

pressure from politicians, bureaucrats, interest groups, or the public. The sec-

ond, sometimes conflicting, tenet of the U.S. judiciary is accountability to the

people. Accountability is manifested in judicial elections and retention votes

in merit plan states but is less emphasized in states that select judges through

legislative action or gubernatorial appointment. This article considers

whether judicial independence can be preserved when judges are subjected to

a performance appraisal process intended to offer an avenue for enhancing

public accountability. Judicial performance evaluation (JPE) is that tool.

The balance between public accountability and independent decision

making is distinctive in the judiciary in comparison to the interplay of these

values in the executive and legislative branches. Judges hold the power to

check potentially oppressive actions of those in legislative or executive

office. They are charged with ensuring preservation of the inalienable rights

and freedoms that are hallmarks of American democracy. Sometimes, judges

have to make unpopular decisions to uphold the daunting responsibilities of

their office. Despite the need for an independent judiciary, courts depend on

the other branches of government for resources. State legislatures make most

funding allocations for court systems. Moreover, state judges are seated

through elections or by appointment of the executive or legislative branches.

Given these checks, balances, and influences of the executive and legislative

branches, can an independent and accountable judiciary exist? In essence,

who should watch the “watchmen” (Sosin, 2000; Winstedt, 1899)? And from

a practical perspective, how?

State judges have experienced highly publicized threats to judicial inde-

pendence (Lubet, 1998). California Chief Justice Rose Bird and two associ-

ate justices were removed from the bench in 1986 as the electorate expressed

displeasure with a series of controversial rulings expanding rights of con-

victed felons and overturning 61 death penalty cases. In 1996, supreme court

Justice Penny White became the first to lose a retention election in Tennes-

see. A coalition of groups, including the state Republican Party, targeted

White by focusing on a controversial opinion issued on appeal of a lower