Should judges be elected or appointed?
While neither system is perfect, the risks of electing judges by popular vote are too great to ignore — from the potential for causing judges to shy away from decisions that might make them less popular with the general public to the ethics of judicial candidates accepting campaign donations from lawyers who are likely to appear in their courtrooms. That’s why in Maryland, most judges are appointed by the sitting governor. From district court to the appellate courts, judges are appointed to 10-year terms and then confirmed by the state Senate. Appeals court judges must also be approved on an up-or-down statewide vote in the first election after their appointment.
There is, however, one exception. Maryland’s Circuit Court judges, the folks who hear most of the serious criminal and civil cases in local courthouses, are treated a little differently. They are nominated by special judicial selection commissions and appointed by the governor, but they can also bypass that process entirely and be elected by the voters. How does that work? Like other judges, appointees face the voters in an election after they are given a gavel. But unlike the others, any Tom, Dick or Harry with no minimum legal qualifications or screening can then file to run for their seat on the bench. Whichever candidate, appointee or non-appointee, gets the most votes wins the 15-year term.
Several months ago, a work group was formed by the Maryland judiciary to study the selection and retention of judges. Co-chaired by Montgomery County Circuit Court Judge Kathleen Dumais, a former state delegate, and former U.S. District Court Judge Alexander Williams Jr., who also served as state’s attorney in Prince George’s County, the panel recently held a public hearing, and it produced the exactly arguments lawmakers in Annapolis have been hearing for years. On the one hand, the appointment process plays favorites and traditionally shortchanged minorities, who then had the option of running for the post instead. On the other, circuit court judges with little political experience are left beholden to all sorts of individuals who just contributed hundreds and perhaps thousands of dollars to their campaigns. When does this pose a conflict of interest? Or better yet, when does it not?
It’s this last circumstance that we find the most distressing. We are pleased to note that minorities are far better represented on the bench than they were several decades ago. Statewide, 51 of 171 circuit court judges are African American, which roughly corresponds with Maryland’s overall racial profile. And it’s not because of open elections. In some cases, it’s been despite them. In recent years, governors, both Democratic and Republican, have simply shown a much greater sensitivity to diversity than their predecessors.
Yet here’s where the current system continues to fail: Let’s say you were appointed a circuit court judge and will soon face a potentially contested election. You need to tell voters about your qualifications, but how do you do that? You are not rich. You will need contributions to pay for advertising, perhaps direct mail or radio spots. Who is motivated to fork over those donations? Likely, that would be lawyers. And it’s not like circuit court judges can recuse themselves from every single case involving major law firms.
Surely, there are areas where lawmakers might do some tinkering — the composition of judicial nominating commissions, for example. Legislators could also require circuit court appointees to face Senate confirmation like their peers. Or shorten the term in office to 10 years from 15. But open elections aren’t helpful. They allow unscreened, untested, unqualified candidates to avoid reasonable scrutiny or, worse, force qualified candidates to compromise their integrity by making them go, hat in hand, to the local bar association. The timing of a state constitutional amendment to make this happen in 2024 might prove fortuitous given the incoming governor’s credibility on matters of inclusiveness — and how fellow Democrats, who represent a majority in the House and Senate, are apt to trust his appointment decisions.
Baltimore Sun editorial writers offer opinions and analysis on news and issues relevant to readers. They operate separately from the newsroom.