I FAVOR judicial elections even though quality judges sometimes lose.
In 1996, Donna Hill Staton, the first African-American judge in Howard County, lost in the general election to a District Court judge.
Recently, the first African-American judge appointed to the Circuit Court for Baltimore County, Alexander Wright Jr., was defeated by a District Court judge.
The issue is not solely one of race. Recently, a Democratic lawyer in Carroll County decided not to accept appointment to that county's Circuit Court. It has been reported that the lawyer was concerned about running in a contested election in a county that votes heavily Republican.
Staton and Wright are people I am proud to call friends. Both are distinguished in their accomplishments and were regarded by those who appeared in their courts as fair, intelligent and honest. Their defeats in the electoral process are losses for their respective benches and the citizens in each jurisdiction. More importantly, their defeats give support to those who would argue that racism contributed to the election results.
The loss of these two fine jurists has rekindled the debate about judicial elections. The Maryland State Bar Association and leaders of the judiciary have for years advocated the abolition of contested judicial elections. In 1996, the Commission on the Future of Maryland Courts examined and debated the issue of contested Circuit Court elections. It recommended that the current system be changed so that Circuit Court judges would run in uncontested retention elections.
There is no question that good judges have been removed by the electoral process. Yet, the proposal to change judicial elections to retention elections will not guarantee that the most qualified candidates become judges.
In fact, there are several valid reasons to maintain the current system that cannot be accomplished by retention elections:
Until Harry Hughes was elected governor in 1978, the judicial appointment system was viewed as an inflexible "old boys" system that provided little opportunity for women or minorities to attain judgeships. Since the Hughes administration, governors have made great strides toward a more diverse Circuit Court bench. One factor that has encouraged these governors to "do the right thing" is the specter of attorneys running for the judgeship against the gubernatorial appointee. Without the possibility of electoral challenge to the political appointment process, the public would have no realistic opportunity to have an impact upon judicial appointments.
Under the current system, judges, even if unopposed, go out into the community to meet with the voters. The nature of judging requires a degree of isolation, so that judges can be impartial and treat all litigants fairly. The electoral process requires judges to interact with the community they seek to judge. Even judges who have had to go to bull roasts, community meetings and religious events have found that they gained perspective by interacting with the community outside of the courtroom.
The 15-year term for elected Circuit Court judges is too long. No other elected official serves that long without facing the electorate. Though not a common malady, it has been observed that some judges act as if they were anointed rather than appointed. If judges are to be awarded 15-year terms, the electorate should be entitled to the potential of judicial challengers who offer an alternative to gubernatorial appointments.
A major complaint about contested judicial elections is that many well-qualified lawyers do not want to leave their practices with the risk of losing in a contested election. Some lawyers might reconsider their reluctance if judicial salaries were increased. The work of the courts is at the core of preserving our system of justice. Judges should be paid accordingly. With an increase in salary, more people might be willing to take the risk.
Several things could be done to improve the current system. Judicial challengers should be required to adhere to the same set of rules that restrict a sitting judge's ability to engage in political debate. All too often, challengers are allowed to make misleading or inflammatory comments, while sitting judges are prohibited from responding because of their ethical rules.
Second, judges who challenge sitting judges should be required to put their judgeships at risk.
It is inherently unfair that a District Court judge can run against a Circuit Court judge but return to the District Court if not successful with the electorate.
Finally, sitting judges should continue to make efforts to reach out to their local communities so that they are seen more often than during the year they seek to run for re-election.
Two highly qualified minority judges have been the victims of the electoral process.
Despite this upsetting result, the public should maintain the right to determine, in a contested election, whether those appointed by the governor should continue on the bench.
About the issue
On March 7, Baltimore County Circuit Judge Alexander Wright Jr. lost his bid for a 15-year term -- defeated by District Judge Robert N. Dugan.
Wright was the first and only black Circuit Court judge in the county.
In 1996, Donna Hill Staton, Howard County's first black judge, was defeated by District Court Judge Lenore R. Gelfman, in a campaign marked by racial issues.
Wright's defeat has reopened the debate over contested Circuit Court elections.
The governor appoints Circuit Court judges, but they must run for a full 15-year term in the following election.
Any lawyer older than 30 who wants a seat on the Circuit Court bench can challenge a sitting judge in those elections.
Harry S. Johnson is a Baltimore trial lawyer and former member of the Trial Courts Nominating Commission for Baltimore City.