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Evaluating judges: a difficult but necessary process

In the final analysis, there’s no simple way to assess a judge’s performance, but it’s important to try to do so. Any effort is likely to be incomplete, but that isn’t a reason not to do the best we can.

This is the sixth in a series of occasional commentaries on the judicial system from the perspective of a District Court judge.

“O wad some Power the giftie gie us

To see oursels as ithers see us”

Robert Burns’ immortal words ring true in every aspect of our lives. It’s often useful to understand how we are seen by others we deal with on a daily basis. Those observations can attune us to what we are doing well, and where we are in need of improvement.

Judge Mel Dickstein

It’s good, then, when judges are meaningfully evaluated regarding the work they do. It gives judges the chance to see their work through someone else’s eyes. Judges may find support for what they do, and become apprised of what they can do better. Of course, sometimes the observations are to be considered and discarded because the person making the observation is challenged, or the observation is inaccurate. A judge’s success may depend on discerning when the evaluation is a good one, and when it’s not.

Judges want to be evaluated to find out how they are perceived. They want the assessment to be a thorough one, and to be made by those who appear before them, or have an opportunity to see them in the conduct of their duties. Judges want to use the evaluations as a means to learn about how others view their work. It gives judges the means to improve what they do and how they do it. Even when the evaluation is reasonably close to the judge’s self-evaluation, a judge will closely review the evaluations to see how he or she can improve.

Judges are aware, of course, that no single evaluation, good or bad, may be representative of a judge’s work. Judges’ evaluations are mostly performed by those who appear before them, meaning a judge is rarely going to make everyone happy. Judges have to make hard decisions with which not everyone will agree. One reviewer may laud a judge for a decision another reviewer decries. One reviewer may see a judge’s approach as fair, while another may complain that the same decision is unreasonable.

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My favorite comment was by the evaluator who said that I’m too concerned with social justice. I couldn’t help but smile because I happen to think a concern with social justice is not an indictment of a judge but a compliment. This underscores the difficulty with judicial evaluations. How do we set the standard upon which judges should be evaluated when many complex factors may be involved?

The problem is that judges don’t just call balls and strikes. There’s often a great deal of judgment involved in determining how matters should be resolved. Complicating matters further, judges issue opinions on a wide variety of legal issues. They decide cases involving complex issues of education law, jurisdiction, statutory construction, insurance law, personal injury law, malpractice actions, statutory causes of action, property law, corporate law, family law, juvenile law and criminal law, among others.

Good judges have to be nimble enough to address a wide variety of legal matters. A good judge needs to analyze existing law well, and be prepared to reason carefully and make policy decisions when the law isn’t fully developed.

And judges have to address matters in a highly professional manner. They have to be able to write intelligently, organize their thoughts logically, and care about nuance. A good judge has to be able to engage in self-restraint, and not decide an issue if it’s one that should be decided by a jury, or when the issue is one uniquely within the powers granted to the legislative or executive branches of government. A judge may even have to decide issues against the judge’s better judgment if that is what the law requires — the fact is that judges don’t always agree with the law, but are required to follow it. Good judges also set a respectful tone for their courtrooms, and appropriately decide evidentiary issues.

Judges also have to be evaluated in the broader context of the court’s duties. A judge has to be versed in performing a variety of responsibilities, not just the ones the judge would most like to handle. Judges in Minnesota are appointed and elected as general jurisdiction judges, which means that a judge must be willing and able to handle civil, criminal, family, juvenile and probate matters. While some districts rotate responsibilities so that a judge is handling only a part of the responsibilities at any one time, a judge must demonstrate the ability to handle a wide variety of cases. Evaluation should recognize a judge’s broader responsibilities and assess whether the judge has demonstrated the skills to handle the work of the court.

It’s equally true that different judicial assignments call for different skill sets. A judge who performs excellently in one assignment may not perform to the same level in another. Legal sophistication is important in every assignment, but it may not be the most important quality when deciding sensitive interpersonal issues in juvenile and family court. A good heart, a caring soul, and life experience may be more important than some other factors. And making instantaneous evidentiary decisions in criminal court, however difficult, may not serve a judge as well when rigorous intellectual analysis is required in a complex civil matter.

In the final analysis, there’s no simple way to assess a judge’s performance, but it’s important to try to do so. Any effort is likely to be incomplete, but that isn’t a reason not to do the best we can. Judging is a complex responsibility, and no one process is likely to get at the essence of a judge’s difficult work. But even if judicial evaluations are imperfect in describing a judge’s core abilities, they can at least take a snapshot of a judge’s work. The snapshot may not be in perfect focus, but it’s better than no snapshot at all. We just have to remember we may not be seeing the picture as clearly as we might like. Evaluations, like the people evaluated, are never perfect.

Mel Dickstein is a judge in Hennepin County District Court, where he handles a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.


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