The Trouble with Judges and Judging Them

By Chuck Muth
Part three of a series
On Tuesday, U.S. District Court Judge Michael Simon struck down President Trump’s executive order “requiring legal immigrants to show proof of health insurance before being issued a visa by the Stat Department.”
Judge Simon, you won’t be surprised to learn, is an “Obama judge.” Fortunately, in Nevada, we get to elect our judges. Unfortunately, there isn’t a whole lot of useful information out there to help voters make informed decisions in judicial races. Fortunately, the Las Vegas Review-Journal has recognized this problem and recently published a series of “ratings” for our judges.
Unfortunately, the rating system used is seriously flawed — as I’ve already begun to outline in Part I and Part II of this series.
Now we’re gonna take a look at the worst part of that flawed system… First, the “ballots” were emailed to 5,200 attorneys — many of whom probably don’t even live in Nevada but are licensed to practice here — and we actually have no idea if the attorneys themselves responded or their secretary.
In addition, while the survey asked attorneys only to rate judges they’ve had “recent case-related experience” with, the anonymous aspect of the survey provides no way to know if the attorneys actually had such direct experience. We’re just supposed to trust them without verifying. Ronald Reagan would not have approved.
Another problem is the raw and varied participation numbers in each evaluation. For example, Supreme Court Justice Abbi Silver had 79 attorneys vote to remove her from the bench. On the other hand, only 17 attorneys
voted to boot Municipal Court Judge Sean Hoeffgen.
And yet, because of the wide disparity of participation, those numbers meant that 65 percent of attorneys thought Silver should be retained while only 41 percent thought Hoeffgen should be retained.
When only 17 attorneys said one judge was bad, that was bad. But when 79 attorneys said another judge was bad, that was good. That’s a serious problem with methodology.
But here’s the worst part: The survey questions themselves were 100 percent subjective. All 13 asked the attorneys for their “opinion.” How they “felt.” What they “believed.” What they “thought.” There were no objective criteria used whatsoever.
For example, the lawyers were asked if they thought the judge “was familiar with the case record and documents.” Did they believe the judge “weighed all evidence and arguments fairly”? Did they feel the judge “accurately applied the law”?
They were also asked if they felt the judge “consistently demonstrated courtesy and respect” and if the judge “seemed attentive to the matter at hand.” “Seemed”? Oy. #4 asked if the attorneys thought the judge’s “explanation for their decision was clear.”
Um, isn’t it more important that the judge gets the decision correct than explaining his reasoning in what a given attorney believes and perceives to be “clear”?
Question #5 was even worse: Do you believe the judge’s behavior “was free from the appearance of impropriety”? Rating “behavior,” not the judicial decision. And the “appearance” of impropriety, not impropriety itself.
Also, Questions #6, #7 and #8 asked if the attorneys felt the judges’ “conduct,” not their decisions, was free of bias based on race, ethnicity, religion or gender.
Hmm. Gender bias, huh? I think now would be a good time to point out that this “Judging the Judges” survey was NOT conducted by the Las Vegas Review-Journal. Alas, the RJ farmed out the project. Which is a shame.
Because as the RJ noted in its reporting on this project, there are better, more objective, ways to evaluate judicial performance, including “the number of times a judge’s decisions have been reversed; the number of times lawyers have objected to appearing before a judge; and the results of peer surveys, which ask judges to grade one another.”
But again, the RJ’s survey was not conducted by the RJ. And the inherent bias of those who actually DID oversee the project is simply … jaw-dropping.
More on that coming up in Part IV. Stand by, guys and gals…

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