The dreaded performance evaluation

Unless you're self-employed or a CEO, you might occasionally undergo a performance evaluation. You know the drill:

1. Comes to work on time? Check.
2. Walks with scissors? Check.
3. Plays well with others? Check.

And you get a score and it somehow affects your salary or your bonus or the size of your office or whatever. Might even affect whether you keep your job.

Now U.S. presidents undergo a performance eval at the four-year mark. Imagine a president who vetoes lots of bills (obviously, this isn't about the woeful veto record amassed by GWB!). And Congress consistently overrides those vetoes. Might paint that president as a loser, right? Well, here are the three all-time leaders in the category of congressional overrides:

1. Andrew Johnson (15)
2. Gerald Ford (12)
3. Harry Truman (12)

I'm ranking Ford above Truman because Ford was in office for just over two years. Truman was in office for nearly eight years.

What do these three leaders have in common? Johnson, assuming office on Lincoln's death, was eventually impeached (but not convicted) for ignoring a law passed over his veto. He didn't run for election to the office. Truman, assuming office after FDR's death, faced hostile Republican Congresses during his presidency. He ran for the office in 1948 and was narrowly elected. By 1952, however, he decided not to run again, not being held at the time in particularly high esteem. Ford, assuming office on Nixon's resignation, also had to deal with a hostile, nearly veto-proof Congress. He ran for office in 1976, barely beat Reagan in the primaries, barely lost to Carter in the general.

To be sure, there were other issues at work than the vetos. Johnson was reconstructing the Union. With Truman it was the Korean War. The Gerald Ford era was so screwed up I doubt anyone could have been re-elected: not only Watergate, but the energy crisis, stagflation, Vietnam, CIA excesses, Congress turning its back on liberation movements (the kind that fought Communists).

So anyway, voters did their performance evaluation on Ford and found him wanting. Truman and Johnson didn't hang around to find out their grades.

And so this post meanders finally to the point: the performance of judges.

Judges have records of their performance. But bad performance rarely results in a penalty.

The Ninth Circuit Court of Appeals, headquartered in San Francisco and reputed to be the most liberal of the circuits, is also the most-overturned. Today, the Supreme Court handed down three decisions. All three overturned Ninth Circuit opinions.

I can understand objections to retention elections based on judicial independence. I can understand Congress's reluctance to equate iffy constitutional reasoning with impeachable "bad behavior."

But if these cream-of-the-crop judges, consistently, can't get the law right, shouldn't some committee of Congress be thinking about an evaluation of some sort?

h/t Orin Kerr at volokh.com.

Track-backing to Outside the Beltway, Mudville Gazette.