As I waited for my judicial interview in a fancy law firm lobby with a panoramic view, the undemocratic nature of the process to become a Baltimore judge hit me. I thought back to a Sunday morning in early spring before the primary when I eagerly sat in Rev. Reggie Thomas' office beneath the sanctuary of Greater Gethsemane Church in the Berea community of East Baltimore. I was running for judge, and he and some in his largely African American congregation wanted to learn what I was about, me: a lanky white public defender raised in the D.C. suburbs as a Jew.
Unfortunately, the judicial appointment process is a far cry from a frank discussion in a Baptist church. To become a Maryland judge, one has to play a game that mixes politics, nepotism and complacency to a nauseating degree. I was ultimately unsuccessful, but I want to share my experiences.
First, here is how Maryland judges reach the bench. Each county and Baltimore City has two kinds of trial courts: district courts handle minor matters and circuit courts that oversee jury trials. Judges are initially appointed by the governor when a vacancy arises, but new circuit court judges must stand for election at their first opportunity after appointment. Attorneys can challenge their positions in the elections as I did, but they rarely do — out of fear of reprisal. Once elected, a circuit court judge serves 15 years. The idea is to put judges through the crucible of an election but not have them constantly running. It's the appointment part that needs fixing.
All I heard from my opponents during the campaign, the six "sitting judges" I was running against, was how they were superior candidates due to their "vetting." This vetting process was made out to be as strict as Donald Trump's immigration policy. But the argument is transparent. Just look at the problems the circuit court bench has with poor rulings on basic legal issues, lack of civility to litigants and docket inefficiency to see that the vetting process has cracks in the facade.
After I lost in the primary, three new circuit court openings came up, so I applied. A prospective judge submits an application to the city's Judicial Nominating Commission, a group of 10 attorneys and three non-lawyers, all political appointees, who don't actually have to live in Baltimore. Prior to a final interview with the commission, an applicant can meet with 13 bar associations comprised entirely of attorneys, many of whom don't live in Baltimore or regularly work in our city's circuit court. The associations report their "findings" to the commission. Finally, the commission submits recommendations to the governor. The evaluation processes are unclear and private.
It's no surprise that my candidacy and application were affronts to an insular lawyer network to which I, a career attorney in the state's public defender's office, do not belong. It didn't matter that my calls for systemic reform drew an electoral fan base in often ignored political groups like the (Baltimore) Republicans, Greens or Ujima People's Progress Party. The bar associations didn't care that activists, professors, social justice proponents and most local farmer's market shoppers backed my candidacy.
Typical prospective judges make no waves. Most are average attorneys who often float among different legal jobs to gain experience in contrasting practice areas without really making a significant difference. That "experience" somehow lifts an applicant to a higher level without revealing how he or she would actually apply the law. To get a leg up, future potential judges join bar associations and serve on the very committees that evaluate applicants. Some sit on multiple associations' committees. A donation here, a favor there and your name could be before the governor.
At the Maryland State Bar Association's interview, I had to steer the discussion away from a debate on electing judges (they were against). At another meeting, an attorney wanted to know whether I would later run as a sitting judge if recommended. Compared with "roll your sleeves up" meetings like the one I had with West Baltimore's Upton Neighborhoods Association, the starched collar bar associations were self-centered and out of touch. The Upton group's questions reflected more realities of court than the attorneys' did.
Then, there were the "findings." One bar association felt that my role as a public defender "would make it difficult … to adopt the dispassionate, neutral demeanor of a judge." They don't understand that most professions demand passion and enthusiasm or you risk sacrificing your best efforts.
Fact is, judges have discretion and can help eliminate disparities cast upon poor people and African Americans. For example, I've argued that what judges are doing in setting unreachable bails is unconstitutional. Even the Maryland attorney general agrees. Yet these ideas were ridiculed by bar association attorneys. Difficult discussions in progressive cafes and challenging conversations in corner barber shops better show who deserves to be a Baltimore judge than any interview. To conquer these forums is to understand the people who appear in court as plaintiffs, defendants, victims, witnesses or jurors.
For a fairer process we must include non-lawyers and end the secrecy in selecting judges because the cruel irony behind judicial appointments is that candidates and applicants lose out by actually listening to the community.
Todd Oppenheim is an assistant public defender in Baltimore City. This piece reflects his personal views. His email is email@example.com; Twitter: @Opp4Justice.