The tangled history of judicial elections

Posted: 6:18 pm Thu, January 28, 2010
By Steven I. Platt
Special to The Daily Record

 The attorney general of Maryland, Douglas F. Gansler, announced this month that he will urge the General Assembly to pass legislation that would eliminate contested judicial elections for circuit court judges and instead enable voters to decide every 10 years whether a circuit court judge should continue on the bench.

 Presumably that decision would be based on the demonstration by the judge during the previous 10 years of the proper judicial temperament, intelligence, strong personal and professional ethics, courage and integrity, experience, education, personality and work habits and attitude suitable to the court’s workload and its subject matter jurisdiction, and not the emotional and usual hodgepodge of irrelevant issues that tend to dominate judicial elections.
 
 In doing so, the attorney general stated the obvious and existentially verifiable conclusion that “these people don’t want to be politicians, they want to be lawyers — they consider a judgeship the crowning achievement of a legal career.”
 
 The Daily Record followed shortly thereafter with a lead editorial endorsing this change, which has been sought for many years by the Maryland State Bar Association, this newspaper and other editorialists, as well as many legal, political and civic leaders in this state.
 
 Alas, to no avail. For a variety of historical, political, cultural and economic reasons, the voters of this state have never been given the opportunity to vote on this proposal, which has been presented to the General Assembly many times as a proposed constitutional amendment for over a quarter-century — and rejected, in most cases, without a vote by either the full House or Senate chamber. The political reasons for this are based on geography, demographics and race as well as history.
 
A curious coalition
 
 In the late ’60s and ’70s, which were the beginning of this writer’s residence in Maryland and which therefore bracket my historical frame of reference, the opposition to the elimination of contested judicial elections for circuit court judges was based in the political and civic leadership of the African American community and in the rural and conservative parts of our state.
 
 The stated rationale for the opposition of the African American community, particularly in Baltimore City, was that the threat of a qualified and politically viable African American candidate running against the “sitting judges” (particularly if they all were white) was necessary to leverage the gubernatorial appointment process to ensure a fair representation of African American judges on the bench.
 
 That was certainly accepted, and arguably true, as we entered the 1970s. This idea has not been easily abandoned thereafter. In fact it remains persuasive in some quarters. It qualified as “conventional wisdom” when I worked for then-state Sen. Steny H. Hoyer from 1971 to 1973 and has remained such in some influential quarters.
 
 This instinctive and indigenous opposition of the African American community and its political leadership, combined at that same time with the opposition of conservative rural and Republican lawmakers, who feared that governors of Maryland (even then, mostly Democrats), if not constrained by the threat of a contested election, would appoint circuit court judges who were far more liberal than the conservative Democratic and Republican elected officials in the rural parts of the state would want.
 
 Needless to say, this coalition created strange bedfellows. Indeed, as a young and impressionable aide observing the Maryland legislature, I remember marveling that this or any issue could unite senators such as Clarence Mitchell III and Frederick C. Malkus, whose interests and values were otherwise so diametrically opposed.
 
Reality check

 Nevertheless, remnants of that coalition have stuck together, and the rationale for their combined opposition to the elimination of contested circuit court elections presumably is still valid in their minds.
 
 Or maybe not. There are also some underlying — and in some cases unstated but very real — political and economic motivations for certain politicians and their supporters to continue to oppose the abolition of contested elections.
 
 One is that the current system gives certain politicians and their supporters who have a demonstrable electoral and or fundraising base an inordinate influence over which judges and judicial candidates are appointed and elected to the circuit courts of our state. This reality is never discussed except in political circles, and never acknowledged as a reason for perpetuating the current system, for the very simple reason that the present system cannot be defended if this reality is acknowledged.
 
 In order to defend the current system while acknowledging this reality, the beneficiaries of that system would have to concede their willingness to compromise our “independent judiciary,” which former Supreme Court Justice William H. Rehnquist described as “one of the crown jewels of our system of government,” in order to perpetuate their own political and economic selfish interest. This is not a position that is likely to be embraced by many voters, regardless of which demographic they belong to or where they live.
 
 Thirty-nine states still hold contested judicial elections. Those elections are increasingly contested and bitter. They are, as The Economist has recently observed, “part of an escalating war between business groups and trial lawyers” that is evidenced by spiraling fundraising multiplying annually at an alarming rate.
 
‘Fundamental tension’

 Maryland is not immune to that trend: state and local fundraising data show a significant increase in dollars raised with each successive judicial election. What happened in our neighboring state of West Virginia, as described in the Supreme Court case of Caperton v. Massey, illustrates where that trend, if not halted by the legislature and ultimately by the voters, can take us.
 
 In 2004 in West Virginia, Don Blankenship, CEO of Massey Energy, spent $3 million to elect now-Justice Brent Benjamin to the West Virginia Supreme Court. Three years later Justice Benjamin refused to recuse himself and voted to overturn a $50 million judgment against Massey. The U.S. Supreme Court in a 5-4 decision said that the $3 million contribution created a “constitutionally unacceptable probability of bias.”
 
 The dissenters dissented to constitutionalizing the law of recusal and in doing so articulated 40 questions that will now have to be answered with increasing and arguably alarming frequency as a result of the majority’s ruling.
 
 What both the majority and the dissenters really did, however, was issue an indictment of any system of contested elections for trial or appellate judges and the inevitable solicitation of money from directly affected litigants and lawyers that accompanies it.
 
 As the Supreme Court acknowledged implicitly in Caperton v. Massey and expressly in an earlier case in 1991, there exists a “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.”
 
 As long as Maryland elects circuit court judges, that tension will remain with us. We should rid ourselves of it, and we can. Next month we’ll write about by whom and how this can get done.
 
Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at info@apursuitofjustice.com.