The recent 5-4 decision of the U.S. Supreme Court in Republican Party of Minnesota vs. White makes more urgent the need to remove Maryland's Circuit Court judges from contested elections.
In this case, the court declared unconstitutional, as a violation of the First Amendment, a Minnesota rule of judicial conduct prohibiting judicial candidates from announcing their views on disputed or political issues during a campaign for election to the bench.
Maryland has a similar rule that, under the Supreme Court's decision, is also unconstitutional and therefore void.
The result is that any candidate, including a sitting judge, is now free to state what his views are on any issue and what his decision would be on that issue, if elected.
He can play to the voters, advocating a particular view or cause that he believes to be popular, whether or not he supports that position, knowing that each case must stand on its own facts and be judged accordingly.
Undoubtedly, pre-announced positions on legal issues will lead to a plethora of requests for disqualification, the judge having already stated his views on the very issue involved. Impartiality is the essence of justice. Now that candidates for the judiciary are at liberty to state their views in advance, the use of this freedom will certainly raise questions about judicial impartiality.
It is interesting that Supreme Court Justice Sandra Day O'Connor, in her concurring opinion, wrote extensively of her concerns about judicial elections. She made the poignant argument that "even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines" the compelling governmental interest in an actual and perceived impartial judiciary.
She concluded, "If the state has a problem with judicial impartiality, it is largely one that the state brought upon itself by continuing the practice of popularly electing judges."
In Maryland, judicial candidates must raise substantial funds to finance contested campaigns. Many of these contributions come from lawyers who practice before them and belong to political groups upon whose support the candidates must rely.
Justice O'Connor further opines that "even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary."
There are many other arguments against judicial elections, which do not require review here. The need for reform is clear and is urgent. Maryland's system is an enigma.
Of the four levels of courts, only judges of the Circuit Courts are still required to face contested elections. The just-completed contested election in Baltimore County again demonstrates that the present system is archaic and inherently unfair.
Another competent judge, Alexander Wright Jr., has been lost in the continuing game of judicial Russian roulette that is played in every general election year. Contributing to his loss was the alphabetical listing on the ballot that put his name on the bottom of the list.
The impact of the Minnesota case and the Baltimore County election make the time right for the next General Assembly to place on the 2004 ballot a constitutional amendment once and for all removing Circuit Court judges from the elective process.
Gov.-elect Robert L. Ehrlich Jr., the Assembly leadership and all bar associations should make this much-needed and overdue judicial reform a top priority.
George D. Solter, a retired trial lawyer, was appointed to the Circuit Court in Baltimore City in 1968 and served for two years and four months before he lost an election to the post in 1970.