MARYLAND'S judiciary is a compromise between the little-d-democrats and the little-r-republicans. One side says that judges should be directly accountable to the people, while the other says judges can only be fair if they remain independent. In Maryland, Circuit Court judges are appointed by the governor, then must stand for election to extremely long terms. The compromise produces results that no one likes but none so horrendous as to justify scrapping the compromise. At least until lately.
The past year has been at the least a public relations disaster for our judiciary. Baltimore's criminal justice system crisis reinforces little-d-democrats who say, "Judges should be elected, then we'd get something fixed!"
The other side of the coin is the recent electoral defeat of the first African-American circuit judge in Baltimore County. There is a consensus that the man's race did him in. I am appalled but not surprised. The little-r-republicans warn us that the electorate's basest instincts invariably determine elections.
There are basically two ways a society can pick its judges: appointment or election. Federal judges are appointed for life. It's a little-r-republican thing. (When the Constitution was written, the people didn't elect senators either. State legislatures did.) The results have been mixed, but the idea has worked at least adequately. There has been a suspicion throughout American history that the federal courts were the tools of the rich and powerful. In counterpoint, many states insisted that their judiciary answer to the voters, just like the legislature and executive. Judges in this scenario are more surrogates for the people than platonic guardians. Even if the moneyed interests bought a judge, he could be bounced out in the next election. It all seems so right, so, so -- democratic.
But there is not much that a judge can run on. Almost all judges are drawn from the bar. They all have the same education and credentials and most are white and male and business-oriented. Unless you can substantiate your opponent's inappropriate relations with barnyard animals, there isn't much to talk about. Judicial elections were breathtakingly dull affairs until television turned them into pandering contests.
I used to practice law in Texas, where every judge from the lowliest justice of the peace to the loftiest justice of the Supreme Court faces the voters in partisan elections every four years. And I do mean partisan. Twice I served as campaign manager for Democratic candidates for district judge (the equivalent of Maryland's circuit judge) in Harris County, Texas. The county, which encompasses Houston, has more registered voters than 26 states. Judicial elections there are not a pretty picture.
About the only campaign promise a judge can make is, "I'll be tougher on crime than him!" Candidates, especially Democrats, are terrified of not making it. The winners pay off by sentencing more defendants to death than any other county in the United States. Even those not threatened by crime respond to these craven appeals because they feel empowered by the results. (Would you like fries with that red herring?)
Another rule judicial candidates must obey to get elected is, "Don't be black." In Harris County, voters elect blacks who run in districts, but not black judges who must run countywide. African-American judicial candidates never, ever put their photos on yard signs or circulars. Even a black former prosecutor, a well-known death penalty advocate, running as an appointed Republican incumbent was defeated. Race trumps even death.
The conundrum is how to elect judges without appealing to the basest instincts of the voters? A candidate for mayor or a legislative position can promise to directly benefit the voter. She can pave roads, pick up garbage and promise to close down open-air drug markets. A judge can't promise to act a certain way in the future and still remain fair, unbiased and independent. Few voters ever see a courtroom. Most don't have a clue about what judges really do, much less how to evaluate it. So voters rely on stereotypes, preconceptions, prejudices.
Legal systems reflect the societies that create them. Maryland's hybrid system insulates judges from any form of accountability, but provides just enough democracy to bring out the Dark Side of the Force. Can we do better? Are our expectations unrealistic? The stakes are nothing less than the legitimacy of our legal system.
Louis F. Linden, a Baltimore consultant, was for five years the executive director of the National Association of Criminal Defense Lawyers.