It is taken almost as an article of faith that retention elections are enhanced with the addition of a judicial performance commission. Some states such as Utah have taken steps to enhance that state’s commission with onsite observation of judges and a focus on procedural fairness. Regardless of whether you are a proponent or skeptic of judicial performance commissions looking at the website of the Utah Commission is worthwhile. http://judges.utah.gov/
But as illustrated by the action of the Kansas House of Representatives there are critics. Republicans in the House moved to abolish a judicial performance commission that annually reports on evaluation of state judges working in Kansas. The commission was a creation of the 2006 Legislature, but critics of the assessments don’t believe the work delves deeply enough into judicial failings to be a meaningful source of information for those voting on retention of judges. The argument of the proponents was that the Kansas commission was too easy on the judges…..or in the parlance of law school professors, there is grade inflation in Kansas.
Perhaps the Kansas Commission was too lenient, but there is another quite plausible explanation for exemplary judicial performance in Kansas. Kansas is one of the epicenters of judges who are members of the American Judges Association. Two recent presidents of the American Judges Association are from Kansas (Terry Elliot and Steve Leben). For more on the debate in Kansas see: http://cjonline.com/news/2012-03-06/house-wants-pull-plug-judicial-reviews
blog.amjudges.org 
In my humble opinion — admittedly not shared by every judge in Kansas — the JPC surveys and reports were fundamentally flawed in multiple respects. They relied upon too few responses. It became too easy for a party or lawyer with a grudge to rate extremely low and skew the overall evaluation. Mostly, people with an axe to grind would be the only ones to make comments or take time to rate the judges. Busy lawyers would not take the time to repond. Those who are contented with the system would not respond. (The National Center’s pilot “tell it to the judge” program was a bit more reliable by catching the litigants, witnesses, etc., for reactions when they exited the courtroom.) In the atmosphere of attacks upon the judiciary, only those with agendas participated, as seen in some of the written comments about the judges. Further, the Kansas program was comparing a pool of rating numbers including partisan elected judges with retained judges, without making the elected judges’ data available for critique or statistical scrutiny for the retained judge given a low rating. The elected judges’ data, by statute, was hidden. Kansas has about half partisan elected and half merit selected/retention election judges. Finally, the system was unfair to the judges handling specialized high conflict dockets, e.g., the family law judges, where everyone is unhappy. The program seemed designed — particularly evident when there was discussion about raising the “passing” grade — to sacrifice a lamb in order to appease the critics of the judiciary in general.
The most significant unfairness about the JPC program was that a judge getting low marks, or worse, getting a rating recommendation of “do not retain” was getting that recommendation under the impramatur of the State of Kansas! That was being based upon a few responses to a survey, primarily skewed by some disgruntled parties, not upon the thousand cases resolved in the year.
I did receive passing scores, so this isn’t just sour grapes. The system was fundamentally flawed. The fact that it was even felt necessary “to educate the voters” ought to give us reason to understand we need to do a better job of communicating what we do as judges and why.
(Please excuse my typing errors, if any. This is very small font.)
JFV
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