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How to judge judges

If there was any Circuit Court judge Baltimore voters might have been expected to have an opinion about, it was Alfred Nance. When he ran for re-election in 2014, he had long since been investigated by the Judicial Disabilities Commission on complaints of inappropriate courtroom behavior and had been sanctioned once, in 2001, after female lawyers complained about his temper and habit of commenting on their appearance. He even had a credible and qualified challenger in the election: Page Croyder, a former prosecutor and well known (in legal circles, at least) commentator on the city’s criminal justice system, who made an issue of his courtroom antics.

But it didn’t matter. Although Ms. Croyder did unusually well for a challenger, and Mr. Nance worse than the other sitting judges on the ballot, he was still re-elected easily. Now, three years later, Mr. Nance faces possible removal from the bench after the Judicial Disabilities Commission recommended his ouster over more or less the same sorts of behavior he was sanctioned for 16 years ago. If the Court of Appeals agrees, he’ll be forced out of the courtroom less than a year before he would have been required to retire anyway.

We at The Sun’s editorial board accept our share of the blame for the fact that Judge Nance was returned to the bench despite the well substantiated complaints about him — we could have and should have made an issue of them before the election. But the fact remains that Maryland’s system for judicial appointments and elections offers myriad roadblocks to the public’s ability to know whether judges are doing a good job and to do something about it. The problem can be fixed.

As The Sun’s Doug Donovan reported on Sunday, 17 other states and the District of Columbia have established formalized judicial evaluation systems. Some publish the findings publicly, others put out summaries and some provide them to the judges themselves as feedback. A generation ago, Maryland’s Bar Association convened a workgroup advocating for something similar here, but the idea went nowhere, despite the participation of some of the state’s most prominent legal leaders.

It’s certainly time to resurrect the idea. Part of what makes evaluating judges so difficult is that their work is regularly observed by only a small slice of the public, but the evaluation systems elsewhere overcome that problem by relying on extensive surveys of lawyers and court personnel as well as direct observation. If such a situation had been in place, we imagine it wouldn’t have taken 16 years between Judge Nance’s first reprimand and the disciplinary proceedings that have now put his job at risk. If such reports were made public, the Judicial Disabilities Commission would likely face more public pressure to address cases of unfit judges and to recommend discipline, which is now rare. Of 214 complaints the commission received in 2017, just three resulted in discipline. True, the vast majority of judges go through a rigorous evaluation process before they are appointed, but the lack of any follow-up is like a college with strict admissions criteria and no grades. Some will perform honorably and conscientiously under those circumstances, and some won’t.

But evaluations alone aren’t enough. For starters, courtroom conduct isn’t the only metric on which the public would be interested in evaluating judges. As the recent debates about whether judges are too lenient on gun offenders and juvenile defendants shows, there is value in considering the decisions judges make about sentencing and other matters, but the way the judiciary publishes data about case outcomes presently makes it all but impossible to do that.

Finally, it’s past time for Maryland to reconsider how it handles judicial elections. Currently, judges run for retention at the first election after they are appointed and then again after 15 years. Other lawyers can run as well, as Ms. Croyder did, and they sometimes do beat one of the slate of sitting judges, though rarely for any good reason. Alphabetical order seems more often to be the deciding factor. Incumbents typically stick together in a thin black line of sitting judge slates no matter their individual qualifications and quality.

There are several reforms that could help, though none may be perfect. Switching to a system of retention elections as opposed to contested ones would solve the current problem in which it is impossible to knock off one bad judge without risking the defeat of a good one. Such a system would also allow for judges to run only in the general election and not party primaries, thus insulating the judiciary from the taint of politics. The down side is that it is less likely that those who believe an individual judge should be removed would be able to mount an effective challenge absent someone to campaign for. Another option would be to reform the contested election process by shortening the judicial terms and randomizing the order of candidates’ names on ballots. The drawback is that an unqualified person could still land on the bench. In either approach, it is an absolute must that Maryland establish a system of public financing for judicial elections. The lion’s share of current campaign funds come from the lawyers who will appear before the judges. That cannot continue.

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