Electing judges by popular vote is a bad idea. Experience has taught this lesson over and over again. If you want judges to be impartial and fair (or at least appear to be), you don't force them to act like politicians making promises and seeking campaign contributions from the very people who are likely to appear before them in a courtroom.
Maryland operates on a bit of a hybrid system. Circuit court judges are appointed by the governor (after being vetted and recommended by local judicial nominating committees), but then they must stand for election to a 15-year term in a contest where any Tom, Dick or Harry from the local bar can run against them. Voters rarely know much about the candidates or their qualifications. At times, simply appearing higher on a ballot (which is arranged alphabetically) can spell the difference between a candidate winning or losing in a contested race.
That's no way to run a judiciary, and thankfully, efforts to reform the selection process just got a major boost. A proposed constitutional amendment that would take contested election politics out of the equation got a key endorsement from Court of Appeals Chief Judge Mary Ellen Barbera. At a hearing this week in the Senate Judicial Proceedings Committee, she announced her support for the measure that would give the authority to appoint circuit court judges to the governor, subject to confirmation by the state Senate.
The legislation would reduce the term of a circuit court judge from 15 years to 10, and those who complete a term (assuming that person is below the mandatory retirement age of 70) would be subject to a reappointment process where, again, the governor would have to appoint them and the Senate confirm them. The proposal also requires the governor to create a judicial nominating commission reflecting the demographic diversity of the state to propose nominees.
How that commission is formed, how long a term on the bench should be and other specifics of the proposal are worthy of debate. But the core of the amendment — to stop forcing judges to campaign for office — is essential, particularly as restrictions on the finances of political campaigns have fallen away (ironically, from adverse court decisions) and political parties and special interests have more opportunities to do mischief than ever before.
Judge Barbera's endorsement is key because her predecessor, Chief Judge Robert M. Bell, did not support such reforms. He and others who embraced open elections have argued that certain disadvantaged groups, chiefly women and minorities, have at times benefited from the opportunity to run for office. Republicans have often taken a similar view, fearing that Maryland, politically dominated by Democrats, wasn't likely to elect a governor who would favor judicial candidates from their side of the aisle.
But both views need to be updated. While African-Americans once found more success at the ballot box than through the appointment process in Maryland, that's not been true in recent years. And Republicans, who just elected one of their own as governor, can hardly argue that they're on the outside when it's time to make judicial appointments.
Indeed, the recent track record for Maryland governors appointing judges who, at least in aggregate, more closely reflect the diversity of the state has been quite good. It was one of the few areas where former Gov. Robert L. Ehrlich Jr. wasn't pilloried by the Democrats. Women currently constitute a majority on Judge Barbera's own court, perhaps, in part, because those judges are appointed by the governor, confirmed by the Senate and appear on the ballot for an up or down vote — but without opposition.
And here's the bottom line: Does anyone seriously want judges taking large donations from the lawyers who argue cases before them? Or from polluters who might seek their help to thwart environmental regulations? The opportunities for conflicts of interest are too numerous to be ignored.
Given its 29 co-sponsors in the Senate, the proposal is almost certain to pass that chamber, but how it will be treated in the House is less clear. House Speaker Michael Busch has long supported such reform efforts, but some delegates may resent how much authority is given to the Senate, especially considering how often lawmakers seek circuit court appointments themselves. Or Republicans and minority members may simply band together in opposition as they've done in the past — even though their reasons now seem outdated.
Judge Alexander Wright Jr., who is African-American and now serves on the Court of Special Appeals (where he doesn't have to face a contested election), lost not once but twice at the ballot box. At least three other black appointees to the circuit court have been rejected by voters under similar circumstances. Whatever antipathy Maryland voters have shown in the past to proposals to eliminate contested elections for judges, the world has changed, and the potential threat to the integrity of the judiciary has only become more apparent.