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Judging Judges: Lessons Learned Along the Way

Judging Judges: Lessons Learned Along the Way

William S. Fulton, Jr. Appellate Military Judges Conference 2014Chief Judge James E. Baker, United States Court of Appeals for the Armed Forces

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I. Introduction• In the past I have spoken on these topics:

� Comparative perspectives on military justice� The extracurricular roles and duties of judges� The meaning of “public service,” including, in particular, the

importance of your service as judges� Today I address the question, “Did I learn anything along the way?”

• Three questions:� What makes a good judge?� Are there metrics by which we can identify good judges?� If there are such traits or metrics, are there structural improvements

or external mechanisms that would improve the odds that the right people are selected to become judges and would provide them with the greatest opportunity to excel in that role?

• Three points: � Prompt and not new information� Two principles of inversion� My method of review

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Outline

I. Introduction– Past Topics– Three Questions

II. Traits– My Suggestions– Canons of Judicial Conduct– Oath of Justices and Judges– JAGC Publication 1-1– Navy Instruction 5817.1F– ABA Guidelines – UK Guidelines – UN Guidelines

III. Evaluation and Metrics– National Center for State Courts: Judicial Performance

Evaluation– Institute for the Advancement of the American Legal System

IV. What Should Our Structure Look Like?

Outline

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: Lhjssons Learned Along the Way

Q: What Makes a Good Judge?

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II. Traits• I suggest:

� Decisive, speedy� Objective, impartial, fair, and open-minded� Judicious, mature, and even-tempered� Humorous� Humble (stare decisis)� Human� Intelligent and knowledgeable � Respectful (of the law, of counsel, and of the role)� Moral courage (Mandela, coups)� Physical courage (overseas, foreign judges)� Integrity (moral authority)� Industry� Commitment to procedural as well as substantive justice� Diversity� Collegial

• What do you think?

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OutlineCanons of Judicial Conduct

Canon 1: A judge should uphold the integrity and independence of the judiciary.

Canon 2: A judge should avoid impropriety and the appearance of impropriety.

Canon 3: A judge should perform the duties of the office fairly, impartially and diligently

Canon 4: A judge may engage in extrajudicial activities that are consistent with the obligations of judicial office.

Canon 5: A judge should refrain from political activity.

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Outline28 U.S. Code §453 – Oaths of Justices and Judges

“I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (office) under the Constitution and laws of the United States. So help me God.”

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JAGC Publication 1-1, Chapter 8

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Navy Instruction 5817.1F

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Outline

I. Legal Ability– Legal reasoning ability – Knowledge of substantive law– Knowledge of rules of procedure and evidence

II. Integrity and Impartiality– Avoidance of impropriety and the appearance of impropriety– Treating all people with dignity and respect– Absence of favor or disfavor toward anyone– Acting fairly by giving people individual consideration– Consideration of both sides of an argument before rendering a decision– Basing decisions on the law and the facts without regard to the identity of the parties or

counsel, and with an open mind in considering all issues– Ability to make difficult or unpopular decisions

III. Communication Skills– Clear and logical oral communication while in court– Clear and logical written decisions

IV. Professionalism and Temperament– Acting in a dignified manner – Treating people with courtesy– Acting with patience and self-control– Dealing with pro se litigants and litigation fairly and effectively

ABA Guidelines for Evaluation of Judicial Performance

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OutlineV. Administrative Capacity

– Punctuality and preparation for court– Maintaining control over the courtroom– Appropriate enforcement of court rules, orders, and deadlines– Making decisions and rulings in a prompt, timely manner– Managing his or her calendar efficiently– Using settlement conferences and alternative dispute resolution mechanisms as

appropriate– Demonstrating appropriate innovation in using technology to improve the

administration of justice– Fostering a productive work environment with other judges and court staff– Utilizing recruitment, hiring, and promotion policies and practices to ensure that the

pool of qualified applicants for court employment is broad and diverse– Acting to ensure that disabilities and linguistic and cultural differences do not limit

access to the justice systemVI. Additional Criteria Reflective of Jurisdiction and Level of Court

– A specialized court judge should be evaluated according to whether he or she demonstrates the knowledge and skills necessary

– An appellate court judge should be evaluated on the quality of his or her preparation for and participation in oral argument and on his or her effectiveness in working with other judges of the court

ABA Guidelines (Con’t)

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Outline

• The Framework is “intended to identify the knowledge, skills, behaviours and attitudes that the judiciary are expected to demonstrate in performing their judicial role…[it] provides an essential self-development aid to individuals.”

• The Framework “was developed through a comprehensive process involving detailed discussion with more than 500 judges, drawn from the District, Circuit, and High Court benches….”

I. Knowledge and Technical SkillA. Core abilities and technical skill

– Sound knowledge of law and its application– Sound knowledge of procedure and appropriate application– Rapid mastery of unfamiliar areas of law B.Examples of how abilities should be demonstrated – Undertakes the necessary preparatory work– Properly applies appropriate legal principles to issues before the court– Appropriately conducts proceedings in accordance with current procedural rules– Identifies critical issues– Rapidly absorbs and analyses complex and competing factual and legal material– Weighs relevant issues and matters of law to formulate reasoned and coherent decisions– Stays up to date with changes to law and procedure

United Kingdom’s Framework of Judicial Abilities and Qualities

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OutlineII. Professionalism and Integrity

A. Core abilities and technical skill– Maintains independence and authority of the court– Maintains personal independence and integrity

B. Examples of how abilities should be demonstrated� Recognizes and discloses potential conflicts of interests� Remains detached and manages own reactions and emotions� Treats all people attending, appearing or working in court with respect and dignity� Avoids use or words or conduct that might give rise to the perception of bias…

III. Communication and Authority A. Core abilities and technical skill

– Establishes and maintains authority of the court– Manages hearing to enable fair and timely disposal– Absence of favor or disfavor toward anyone

B. Examples of how abilities should be demonstrated – Controls court proceedings through fair and effective management and intervention– Communicates effectively orally and in writing– Displays sensitivity to specific communication needs for reasons of language or disability– Remains calm and authoritative despite in appropriate or provocative behavior– Drafts clear, reasoned decisions with appropriate concision

IV. Decision-makingA. Core abilities and technical skill

– Sound judgment– Appropriate exercise of discretion

B. Examples of how abilities should be demonstrated – Makes timely and appropriate procedural decisions– Makes firm and clear interlocutory judgments– Produces well-structured reasoned judgments with appropriate concision

UK Framework (Cont’d)

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OutlineV. Efficiency

A. Core abilities and technical skill– Manages hearings to facilitate fair and timely disposal– Actively manages cases to promote efficiency and just conclusion of business

B. Examples of how abilities should be demonstrated – Works at appropriate pace– Manages case using most efficient approach and procedures– Establishes and enforces realistic time estimates– Works cooperatively with judicial colleagues and court staff– Prioritizes effectively – Delivers judgments promptly – Exercises discretion in course of proceedings to ensure efficient use of time– Uses information technology effectively

VI. Leadership and ManagementA. Core abilities and technical skill

– Strategically plans and organizes– Manages change– Supports and develops talent– Manages quality standards– Encourages and facilitates teamwork

B. Examples of how abilities should be demonstrated – Strategically manages resources and deployment – Works in partnership with judicial colleagues and the administration to achieve objectives– Uses initiative creatively to solve problems– Appropriately deals with performance issues– Identifies and responds to development needs– Is approachable and supportive

UK Framework (Cont’d)

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Outline

• Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices at the Peace Palace, The Hague, November 25-26, 2002.

• The Bangalore Draft Code of Judicial Conduct was widely disseminated among judges of both common law and civil law systems and discussed at several judicial conferences.

• Those countries participating included the United States, Australia, Austria, Bangladesh, Brazil, the Czech Republic, Egypt, France, Hungary, Germany, India, Italy, Mexico, Mozambique, Nepal, The Netherlands, Nigeria, Norway, The Philippines, Portugal, Madagascar, Sierra Leone, South Africa, Sri Lanka, Sweden, Tanzania, Uganda, and the United Kingdom.

United Nations: The Bangalore Principles

of Judicial Conduct

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OutlineBangalore Principles (Cont’d) The following principles are intended to establish standards for ethical conduct of judges. They are

designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary….

I. Independencea. A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in

accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

b. A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute that the judge has to adjudicate.

c. A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

d. In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions that the judge is obliged to make independently.

e. A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operation independence of the judiciary.

f. A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.

II. Impartialitya. A judge shall perform his or her judicial duties without favor, bias, or prejudice.b. A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the

public, the legal profession and litigants in the impartiality of the judge and of the judiciary.c. A judge shall, as far as reasonable, so conduct himself or herself as to minimize the occasions on which it will be

necessary for the judge to be disqualified from hearing or deciding cases.d. A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that

might reasonably be expected to affect the outcome of the proceeding or impair the manifest fairness of the process, nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue….

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OutlineBangalore Principles (Cont’d) III. Integrity

a. A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.b. The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary.

Justice must not merely be done but must also be seen to be done.

IV. Proprietya. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.b. As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as

burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office….

V. Equalitya. A judge shall be aware of, and understand, diversity in society and differences arising from various sources,

including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.

b. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds….

VI. Competence and Diligencea. The judicial duties of a judge take precedence over all other activities.b. A judge shall devote the judge’s professional activity to judicial duties, which include not only the

performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations.

c. A judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for that purpose of the training and other facilities that should be made available, under judicial control, to judges.

d. A judge shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms….

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III. Metrics• Metrics pose more difficulty

� You know it when you see it� Perhaps because you know it when you don’t see it (see next

slide)� The comparative model or Benchmark model; compare

yourself to other judges� Pure metrics i.e. the number of cases decided, page count,

assignments of error� Quality of opinion or subjective model, which depends on your

view� Reversal rate

“We are not final because we are infallible, but we are infallible only because we are final.”

Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.)

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OutlineJudges Behaving Badly

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OutlineJudges Behaving Badly

(CNN) – At a friend's sleepover more than a year ago, 14-year-old Phillip Swartley pocketed change from unlocked vehicles in the neighborhood to buy chips and soft drinks. The cops caught him. There was no need for an attorney, said Phillip's mother, Amy Swartley, who thought at most, the judge would slap her son with a fine or community service. But she was shocked to find her eighth-grader handcuffed and shackled in the courtroom and sentenced to a youth detention center. Then, he was shipped to a boarding school for troubled teens for nine months.

…[Judge] Ciavarella, 58, along with [Judge] Conahan, 56, corruptly and fraudulently “created the potential for an increased number of juvenile offenders to be sent to juvenile detention facilities,” federal court documents alleged. Children would be placed in private detention centers, under contract with the court, to increase the head count. In exchange, the two judges would receive kickbacks.

OutlineJudges Behaving Badly

OutlineJudges Behaving Badly

OutlineU.S. v. Joseph Alstötter, et al. (“The Jurists’ Trial”)

In summary, the defendants are charged with the judicial murder and other atrocities which they committed by destroying law and justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination under law.

The true purposes of this proceeding, therefore, are broader than the mere visiting of retribution on a few men for the death and suffering of many thousands. I have said that the defendants know, or should know, that a court is a house of law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against those who died or suffered at their hands, their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, “with all its methods of terror, and its cynical and open denial of the rule of law.”

The temple must be reconsecrated. This cannot be done in the twinkling of an eye or by any mere ritual. It cannot be done in any single proceeding or at any one place. It certainly cannot be done in Nuremberg alone. But we have here, I think, a special opportunity and grave responsibility to help achieve this goal. We have here the men who played a leading part in the destruction of law in Germany. They are about to be judged in accordance with the law. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgment under laws the only just fate for the defendants: the prosecution asks no other. . . .

-Brigadier General Telford Taylor, Chief Prosecutor

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Judges as Role Models

Judges as Role Models

Judges as Role Models

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Outline

• The National Center for State Courts is an “independent, nonprofit court improvement organization,” whose “efforts are directed by collaborative work with the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders.”

• At least 21 states have a Judicial Performance (JPE) program, including AK, AZ, CO, CT, DC, FL, HI, ID, IL, MD, MA, MI, MN, NH, NJ, NM, PR, RI, TN, UT, VT, VA.

• Most states have evaluation committees composed of both lawyers and non-lawyers.

• Evaluations are based on a variety of methods, such as surveys, hearings, confidential questionnaires, exit polling.

• Some states keep the results confidential to the judge whereas other states release information to public, e.g., prior to retention elections.

National Center for State Courts: Judicial Performance Evaluation

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OutlineNCSC (Cont’d): Some Examples

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OutlineInstitute for the Advancement of the American Legal System (IAALS) • IAALS is “a national, independent research center

dedicated to facilitating continuous improvement and advancing excellence in the American legal system.”

• Four Principles of Judicial Performance Evaluation– Transparency: System design should engender

trust among all stakeholders and participants– Fairness: Evaluations should be fair in design and

result– Thoroughness: Evaluations should take into

account all relevant information and be done frequently for greater effectiveness

– Shared expectations: Evaluations should be able to instruct judges about their strengths and weaknesses and promote performance as well teach public to focus on process outcomes v. case outcomes

• Fifteen Building Blocks for JPE Programs – Authorization: How should a judicial performance program be authorized?

– Implementation: What will the rules governing the program say?

– Placement: What branch of government, if any, should oversee the program?

– Reach: Should there be local performance commissions for local judges?

– Composition: What is the make-up of the commission and how are members chosen?

– Timing: How frequently should evaluations be conducted?

– Confidentiality: When, if at all, should evaluations be kept confidential?

– Deliberation: Should the commission’s meetings be open to the public?

– Criteria: What are the appropriate bases for evaluating judges?

– Data Collection: What information do we want on the judges?

– Benchmarks: What threshold standards should be expected of every judge?

– Recommendations: Should the commission issue a formal recommendation on retention?

– Appeal: What process should a judge have to appeal the evaluation results?

– Publication: What information should the commission make available to the public?

– Dissemination: How should the commission’s work be made available to the public?

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OutlineIAALS (Cont’d)

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OutlineIAALS (Cont’d)

Checklists ensure consistency and uniformity in evaluations

Yet can be customized for specific jurisdictions

Key IAALS criteria for evaluating judges– Legal knowledge– Integrity – Communication skills– Judicial temperament– Administrative

performance– Public outreach

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OutlineABA Self-Evaluation Questionnaire for Appellate Court Judges

http://www.americanbar.org/content/dam/aba/migrated/jd/lawyersconf/performanceresource/survey/appellate_judge_selfassessment.authcheckdam.pdf

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IV. What Should Our Structure Look Like?

• Time (three-year rule; tenure; to think; staffing)• Distance (from issues; from other roles and future roles)• Independence (fitreps; promotion; tenure)• Knowledge (specialization; training; experience)• What else?

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Questions?