Maryland Attorney General Douglas Gansler recently proposed ending democratic elections for circuit court judges across the state. But the system he proposes - known by advocates as "merit" selection - will make judges less accountable and more prone to the type of judicial activism that continues to erode confidence in our legal system nationwide.

Under "merit" selection, judges are chosen by a small panel controlled by legal elites, rather than voters. Favored candidates are then sent to the governor, who must choose from the approved slate. Judges chosen under "merit" selection never face contested elections, just retention ballots where citizens can only vote "yes" or "no."

Mr. Gansler suggests that a retention election "offers [voters] a tool to hold the judge accountable." Actually, retention elections practically assure a lifetime appointment to the bench.

Of the 6,309 judges who ran in retention elections in the U.S. between 1964 and 2006, more than 99 percent were re-elected, according to an article by Professor Larry Aspin of Bradley University. Vanderbilt Law Professor Brian Fitzpatrick found that 145 out of 146 Tennessee judges were retained in a study he published on that state's experiment with "merit" selection.

I'm certain that many or even most of those judges were fine public servants who deserved to be returned to office. But are judges really so infallible that we feel comfortable virtually eliminating the possibility that voters can remove them? Under the Gansler plan, judges would be even less accountable, because once they survived the first election they would not have to go before voters again for 10 years.

Imagine if you could only pick your home from a list of four choices provided by your real estate agent, then couldn't move out for another decade if you were unhappy with that choice. That's how merit selection works - but lawyers are the ones doing the picking.

In Maryland, lawyers currently hold 16 of the 17 seats on the commission responsible for choosing appellate court judges. But courts exist to serve all citizens. Judicial decisions affect business owners, doctors, teachers, parents, police officers. No one would dream of suggesting that only teachers be allowed to vote for school board members, so why should lawyers be given a privileged position in choosing our public servants on the bench?

Some "merit" selection advocates would answer that voters are not really qualified to make these decisions. For instance, according to news reports, Howard County Circuit Court Judge Diane Leasure believes that the judicial nominating commission "know[s] better than most about what the county needs in a Circuit Court judge" and that the average voter has "absolutely no information about what happens in court."

Such elitism has never sat well with voters, and Mr. Gansler is too clever a politician to make this case. He does, however, suggest that "merit" selection is needed because minority judges are often thrown off courts for reasons of "outright bias" in "predominantly white counties."

Yet "merit" selection offers no guarantees of racial harmony. In Florida, Gov. Charlie Crist has battled with state judicial nominating commissions for failing to submit qualified minority candidates. The problem is so bad that last April, Florida's NAACP filed an amicus brief with the state Supreme Court charging that "the specter of racial discrimination has been raised" by the commission's actions.

Mr. Gansler also criticizes the "unseemly cash flow" of $3.9 million to all candidates for circuit court judge in the last election cycle. According to the Maryland Elections Center, in the last election the attorney general spent nearly $3.6 million, compared with around $200,000 for his opponent - a more than 17 to 1 margin that neutral observers might characterize as "unseemly." Shouldn't the state's chief prosecutor be as insulated from influence-seeking contributors as the judges who hear the cases he brings?

In Federalist 39, James Madison wrote that it is "essential" that a democratic government "be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it." It seems plain that "merit" selection - where judges are chosen not by the people but by a committee comprised chiefly of lawyers - is exactly the type of system the Founders wanted to avoid.

Dan Pero is president of the American Justice Partnership, a nationwide coalition that advocates for judicial accountability and legal reform on the state level. His e-mail is dpero@americanjusticepartner ship.com.

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