ANNAPOLIS – Maryland should stop permitting the election of circuit court judges because the practice politicizes the judicial process, which must be free of even the appearance of being tainted by special interests or well-heeled donors, the state’s top jurist told a Senate committee Thursday.
“We can get decent judges by election, but what you get these days are large campaign contributions when you have elections,” Court of Appeals Chief Judge Mary Ellen Barbera said, quoting retired U.S. Supreme Court Justice Sandra Day O’Connor. “I don’t think we should have cash in our courtrooms. It just doesn’t belong there.”
Barbera spoke as the Senate Judicial Proceedings Committee considers a proposed constitutional amendment to end circuit court elections, leaving to the governor the selection of all judges to those trial courts. The proposal would also subject the governor’s selections to the advice and consent of the Senate, which is not currently required.
If approved by the General Assembly, the proposed amendment – Senate Bill 246 –would go before Maryland voters in a 2020 referendum.
Opponents of the proposal, including members of the committee, pointed to a history of discrimination against women and minorities in the appointment process, which they say has left elections as the most effective way for these underrepresented groups to ascend to the bench.
In response, Barbera said the Maryland Judiciary has become increasingly diverse in recent decades, obviating the need for elections to ensure diversity.
“We are living in a very different environment when it comes to opportunities, diversity of all sorts,” said Barbera, who became the first woman to lead the Court of Appeals when then-Gov. Martin O’Malley appointed her in 2013.
She succeeded Chief Judge Robert M. Bell, the first African American to hold the post following his appointment by then-Gov. Parris N. Glendening in 1996.
Sen. Benjamin F. Kramer, D-Montgomery, proposed the constitutional amendment this session, as he did when in the House of Delegates in 2017. That proposal died in the House Judiciary Committee, a fate Kramer said he hopes to avoid this year.
Judicial candidates are subject to a “vigorous vetting process,” Kramer told the Senate panel in characterizing elections as unnecessary.
The candidates are interviewed by a litany of diverse bar groups before being reviewed by trial court commissions that make their merit-based recommendations to the governor, who makes the appointment, Kramer said.
“Our judges should not be forced into the role of being politicians (and) subject to the bickering and politicking that often characterizes these campaigns,” he added.
Anne Arundel County Circuit Judge Laura S. Ripken, an appointed jurist who has faced an election challenge, told the committee of her discomfort in performing the nonjudicial tasks of waving signs, knocking on doors and participating in parades.
“There is a place for politics,” said Ripken, who spoke as chair of the Conference of Circuit Judges. “It ought not be in a courtroom.”
Keith R. Truffer, president of the Maryland State Bar Association, said his group is concerned about the real or perceived impropriety of judges having to raise money to ward off an election challenger.
“It takes a lot of money to run a contested election,” said Truffer, a Baltimore County Circuit Court judge.
“Judges are no different,” he added. “This is a terrible way to select people for a very important position.”
Former Anne Arundel County Circuit Judge Ronald H. Jarashow, who lost his appointed seat in an election, told the senators that judges, who must remain neutral, are different from legislators, who advocate for and solicit support from constituents.
“You (legislators) can choose to run,” said Jarashow, of Gormley Jarashow Bowman LLC in Annapolis. “Judges don’t choose to run. We are involuntary candidates.”
But retired Baltimore County Circuit Judge Robert N. Dugan, though an appointed jurist, urged the committee to reject the proposal to end judicial elections — a stance he acknowledged made him “the skunk at the judicial Valentine’s Day party.”
“Don’t take a right away from the citizens of Maryland,” Dugan said, adding that judicial elections have served as a gateway for minority and women judges.
“Overall it has worked well for the Maryland citizens,” he added. “They feel part of the process.”
That argument drew support from Sen. Jill P. Carter, a committee member who called judicial elections “the only option for the people to have any say” in who serves on the bench.
She criticized the vetting process as part of “the inner-circle network of elitism selecting our circuit court judges.”
Carter, D-Baltimore City, said judicial candidates are graded on their civic work outside their legal practice and on what organizations they belong to, which she said eliminates many talented attorneys who just want to practice law.
Barbera rejected Carter’s claim of elitism.
The chief judge said she was interviewed by at least 15 organizations, which wanted to know what type of judge she would be, as well as by the Appellate Judicial Nominating Commission.
“It was a healthy exercise,” Barbera said.
“I was put to the test,” she added. “You don’t have that it in a contested election. You just don’t.”
But several senators on the committee voiced their support for judicial elections.
Sen. Chris West, R-Baltimore County, cited a history of discrimination against minority judicial applicants in Baltimore City that prompted black lawyers to run for circuit court judgeships in the 1980s.
Sen. Michael J. Hough, R-Frederick and Carroll, cited a history of Democratic governors refusing to appoint qualified Republican attorneys for judgeships.
Sen. Justin Ready, R-Carroll, said judicial elections are part of the democratic process.
And Sen. Robert Cassilly, R-Harford, said elections give voters their only recourse regarding judges who are too lenient on convicted violent criminals.
“Turning bad guys back on the streets doesn’t violate anything other than voters’ conscience,” Cassilly said.