By Kathryn Alfisi
Each year the D.C. Bar Judicial Evaluation Committee (JEC) reaches out to a segment of the D.C. Bar to conduct its survey on a select group of judges serving on the Superior Court of the District of Columbia and the District of Columbia Court of Appeals. Approximately 30 to 35 judges in their 2nd, 6th, 10th, and 13th year of service are evaluated each year, as are senior judges during the second year of their four–year term and once during their two–year term.
The surveys are completed by lawyers who have appeared before the selected judges in the two years prior to the evaluation period. The survey results are then viewed by the D.C. Courts’ chief judges, and finally are considered by the D.C. Commission on Judicial Disabilities and Tenure in its judicial evaluation process, which determines whether a judge will serve another term or take senior status. The evaluated judges also receive copies of the report.
After a decline in response in the most recent evaluation cycle, the JEC is seeking to increase feedback from Bar members. Steven N. Berk, who served on the JEC before becoming chair of the committee, says getting Bar members to return the surveys has been an ongoing challenge.
“The number of respondents is dipping under 10 percent. As surveys go, that’s not bad, but when you send it out to a group of people who have appeared before that judge in the prior year, the numbers should be well in excess of that,” says Berk, a managing partner at Berk Law.
Berk notes that the lack of response may be due to attorneys skeptical that the survey is truly anonymous or that their opinion would really make a difference. But regardless of the reasoning, Berk says it’s important for attorneys to participate in the judicial evaluation process.
“I think that you have some obligations as a Bar member, one of which is that if they ask you to evaluate a judge, you do it. There are no sanctions if you don’t do it, but in my mind, it’s a professional responsibility. I’ve been disappointed to see how few people take that seriously. The better the data we can get, the better work we can do,” he says.
The Survey Process
The JEC’s most important responsibility is to make sure that the survey process is appropriate and fair. The committee formulates the survey questions, coming up with new ones some years; last year, for example, there were questions regarding how judges treated pro se litigants. Questions are answered on a numerical scale, and the survey also includes a comment section.
For years, the JEC relied on the D.C. Courts’ clerk’s office to obtain attorney appearance data to determine who appeared before the selected judges in the previous year. Between 3,500 and 5,600 attorneys were e–mailed surveys based on this method in the five years prior to the 2011–2012 evaluation cycle; the average number of annual survey respondents was 600.
Starting last year, the JEC expanded its reach, e–mailing surveys to all active D.C. Bar members practicing in the Washington metropolitan area, and the number of respondents dropped to 341.
“It is odd that on something so important it is hard to really elicit comments. I’d like to think that the absence of comments—although I don’t know if this is true—means that there aren’t negative views out there,” says Judge Gladys Kessler of the U.S. District Court for the District of Columbia, who chairs the Commission on Judicial Disabilities and Tenure. “Certainly, we have had instances where there have been very strong negative views of a judge, and we have done careful investigations that take a substantial amount of time for us to come to a conclusion. But many of the judicial evaluations that I’ve read rave about particular judges, and you see that pattern very quickly. There are a number of judges on that court who are considered fantastic judges, and we know that.”
For judges seeking to serve an additional term, the judicial evaluation process starts when they file a written declaration of candidacy at least six months prior to the expiration of their term. Judges then submit the necessary materials to the commission, which include a written statement with illustrative materials that outlines the judge’s significant judicial activities, as well as a statement from the judge’s physician attesting to his or her health.
During the investigation period, commission members look at the JEC surveys and conduct interviews with court personnel who have worked closely with the selected judges, with attorneys who have appeared before the judge, with the chief judge of the respective court, and with the judges themselves. There is also a public comment period. The commission also invites public comment on judges seeking reappointment.
“For the same judge, we will sometimes see evaluations that say that this person is the best judge on the Superior Court and then another evaluation that says this person should walk out the courtroom door. On the other hand, if there is a very strong pattern of similar comments, we’ll look into that very carefully,” Kessler says.
If the commission determines that the judge is “well qualified,” then the judge is automatically appointed to a 15–year term. If the judge is determined to be “qualified,” the president of the United States has the ability to re–nominate the judge, subject to U.S. Senate approval. But if the judge is determined to be “unqualified,” the judge becomes ineligible for reappointment or any future appointment on the D.C. Courts.
The process concludes with the commission writing an evaluation report, which must be sent to the president at least 60 days before the expiration of the judge’s term. The report is also sent to the judge and then released to the public.
The judicial evaluation process is somewhat different for a judge looking to take senior status. For one thing, the judge may seek appointment for senior status at any time but not later than one year after retirement. For another, there are only two possible outcomes of the review process: If there is a favorable recommendation made, the judge is appointed to be a senior judge; if there is an unfavorable recommendation, the judge is deemed ineligible for appointment as a senior judge.
Bolstering Attorney Response
The JEC is making various efforts to improve the survey response rate, thereby giving D.C. Bar members more voice in the judicial evaluation process.
“We look at the evaluations. However, we recognize that, number one, the evaluations are totally anonymous and sometimes people who don’t have to give their names say things that aren’t accurate. Number two, we also recognize the number of people who give their evaluations is extremely small compared to the number of lawyers who have litigated before the judges being evaluated. We take both of those things into account when we look at the evaluations,” Kessler says.
Berk says the JEC is trying harder to allay attorneys’ fears that the survey is not anonymous. He says JEC members don’t even know whose feedback they are reviewing as the survey is run through a vendor that sends out the survey and just returns the numbers and comments to the committee.
“We don’t get anybody’s name and neither does the chief judge,” Berk says.
As was done in past years, this year e–mails will be sent to attorneys whose information was obtained from the D.C. Courts’ clerk’s office. This year’s evaluation, which will be available online from the end of November through early January, will mark the 2012–2013 evaluation period.
Another way in which the JEC will try to improve feedback is by asking the U.S. Attorneys’ Office for the District of Columbia and the District of Columbia Office of the Attorney General to participate in the survey since they do not always get listed by the clerk’s office, even though they appear in every criminal case in the District.
For Berk, participating in the judicial evaluation process by completing and returning evaluation surveys is not just a responsibility of Bar members, but also a way to support the District’s merit system that places judges on the bench.
“Here in the District, we don’t have an elected judiciary, we’re supposed to do it by merit; the evaluation process is part of that. We want to keep it a merit system, and it strengthens the system to have judges who get the next term because the lawyers who appeared before them thought they did a good job. My feeling on this is that it really is important in respect to this notion of having an independent, merit-based judiciary,” he says.
Reach D.C. Bar staff writer Kathryn Alfisi at firstname.lastname@example.org.