The framers of the United States Constitution got the formula right for creation of an independent judiciary separate from the political branches of government and insulated from the vagaries of public opinion. Although the process of nomination and confirmation are by no means free of political consideration, Article III judges, once appointed and confirmed, are given lifetime tenure and charged with the responsibility to make decisions impartially, based solely on the rule of law.
In Maryland, once appointed by the governor, circuit court judges must stand for election within two years of their appointment and again every 15 years thereafter. A bill introduced in the Maryland Senate last month proposes an amendment to the Maryland Constitution that would eliminate contested elections for circuit court judges. The bill provides that after gubernatorial appointment, a judicial appointee must be confirmed by the Senate after public hearings, a process not now required; and if confirmed, the appointed judge would serve for 10 years before reappointment. We favor an end to contested judicial elections and endorse this bill.
Politicians campaign for election to the executive and legislative branches of government on platforms of promises to the electorate. The ideas and policies that gain the most popularity win out. The mood of the electorate changes.
Rule of law
The Judiciary is different. The rule of law is not so flexible and must not be the product of popular sentiment. “Judges are not politicians,” said Supreme Court Chief Justice John Roberts at his Senate confirmation hearing, “They cannot promise to do certain things in exchange for votes.” As he famously explained: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.”
But do we want elected umpires who campaign for their jobs with funds provided by the players and fans?
The facts of the case leading to the Supreme Court’s opinion in Caperton v. Massey Coal Company, Inc. provide a glimpse of the slippery slope. There, after suffering a $50 million jury verdict, a West Virginia litigant raised over $3 million to help elect an unknown lawyer to the West Virginia Supreme Court, where the newly elected judge refused to recuse himself and twice cast the vote necessary to reverse the verdict against his benefactor.
While the Supreme Court ruled that the extreme facts in Caperton required the elected judge’s recusal, the Court’s decisions in Republican Party of Minnesota v. White (striking down a state judicial canon prohibiting judicial candidates from announcing views on disputed legal or political issues) and Citizens United v. Federal Election Commission (holding unconstitutional a federal ban on spending by independent organizations to support or denounce candidates) have opened the door to greater spending by interest groups and have accelerated the disappearance of fairness and dignity from judicial elections. A memorable campaign ad for the Alabama Supreme Court compared one candidate to a skunk, with the pitch: “You can smell how bad this man’s ideas are.”
The case against merit judicial selection often focuses on a perceived lack of “accountability” to the electorate. But that lack of direct accountability is precisely what guarantees an independent judiciary and assures necessary checks and balances among the branches of government. Judges should be led by and accountable only to the rule of law, even if their decisions are unpopular with the electorate, elected legislators, or the executive.
And important judicial decisions have often been unpopular. When Brown v. Board of Education was decided, “impeach Earl Warren” signs sprouted along American highways. At the time the Supreme Court invalidated anti miscegenation laws in Virginia, polls showed that over 80 percent of the state’s white population disapproved of interracial marriage. The Court’s opinion in West Virginia State Board of Education v. Barnette (protecting the First Amendment right of Jehovah’s Witnesses not to salute the American flag) spawned calls to strip justices of life tenure.
In a merit system of judicial selection, judges are vetted by judicial nominating commissions and specialty bars who have a wealth of information to consider in the evaluation of candidates. To challenge a Maryland Circuit Court Judge at the ballot box, however, a judicial aspirant need not submit to such inquiry. Rather, he or she must simply have a law degree, be 30 years of age, and be a resident in the county where the judgeship is sought. “Integrity, wisdom, and sound legal knowledge” are the judicial requirements imposed by the Maryland Constitution, but the electoral process does not provide an opportunity for assessment of these qualities or the qualities of legal acumen, intellect, and judicial temperament. Because voters lack meaningful information, few have a basis upon which to select a judicial candidate. Elections are usually won on name recognition or proximity to the beginning of the alphabet.
The judiciary should not be forced periodically into the political arena. Judges need not be distracted from their difficult jobs to attend endless campaign events, to ask for money from the lawyers who practice before them, or to stand on street corners waving campaign signs. And more importantly, judges should make no decision based on how it may be received by the voters. We urge the legislature to pass this bill and to place before the voters of Maryland a constitutional amendment ending contested judicial elections.
Editorial Advisory Board members Wesley D. Blakeslee, Arthur F. Fergenson and Stephen Meehan did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
Wesley D. Blakeslee
Arthur F. Fergenson
Daniel F. Goldstein
C. William Michaels
H. Mark Stichel
Ferrier R. Stillman
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.