Editorial Advisory Board//January 30, 2020
//January 30, 2020
Chief Judge Mary Ellen Barbera of the Court of Appeals, our highest court, has come out in favor of stripping the voters of their only real opportunity to hold state judges accountable for their performance. She proposes to end contested elections for the judges of circuit courts, our trial court of general jurisdiction. We dissent.
Right now, when a vacancy opens up the governor appoints the 153 judges of the circuit courts upon the advice of a nominating commission. After a year in office, each appointee must stand for election. If the judge survives this first hurdle, then she or he has a 15-year term. After this full term, the judge can seek re-election and, if achieved, and if he or she is young enough when this whole process starts (retirement is mandatory at age 70), another 15 years is guaranteed. A sweet bargain: two elections for 31 years in office. The elections are nonpartisan where the judge, at least until after the primaries, runs for nomination on both the Republican and Democratic lines. If a judge is knocked off one party slate, then the general election for judges becomes, strictly speaking, partisan.
Appellate judges, of which there are 20 in this state, have it sweeter. The governor appoints to a vacancy from a list presented by a judicial nominating commission and subject to Senate confirmation. A retention election is held a year after appointment, and then again in 10 years. No one ever gets booted out by a retention election. The range of “yes” votes is from the 80s at the low end to Judge Harrell’s 91.44% in 2010. The conclusion we reach is that nothing an appellate judge could do, short of committing a felony or a serious ethical breach, could ever imperil a life (to retirement) appointment. The degree of unanimity amassed by every appellate judge is reminiscent of the voting of the old Supreme Soviet: Everyone (and we mean it!) hold up your red card to show approval.
For 125 years, until 1976, appellate court judges faced contested elections. Now “reformers” want that same comfort for trial judges. Taking away this last vestige of voter participation in real — as opposed to the closest thing we have to sham — elections is a mistake. Trial courts are the courts closest to the people. Only a fraction of judgments by trial courts are reversed: Circuit courts are justice, and those meting it out should be forced to present their bona fides to the entire electorate, not just the members of the state Senate or other bodies removed from the everyday experience of real-life litigants.
Judges don’t like to glad-hand. Who does? Judges don’t like to face the possibility of the people judging them for a change. Perhaps that might promote a healthy degree of humility in judges whose everyday experience works contrary to that. Lawyers glad-hand judges, and some of it back might be a good tonic for our judges, including appellate judges. Perhaps it might make more sense to return to the pre-1976 system than to extend worry-free tenure to circuit court judges. It has not escaped our attention that elections are the best way to ensure minority participation in the judiciary. That is how African Americans gained footholds in the Baltimore City Circuit Court. Republican jurisdictions in the state would face loss of judgeships over time should we abolish contested elections and the governorship reverts to a Democrat.
We have been presented with several reasons why circuit court judges should not face competitive elections. First, it requires them to raise money, mostly from lawyers who may appear before the judges. It has been proposed for federal elections that contributions be made anonymously to campaign organizations. That surely could be done for Maryland judicial campaigns. The contributor lists would not be made public, and would definitely not be allowed to be shown to the judicial candidate for whose election benefit the money was donated. It probably would take a law to allow such committees to be set up, voluntarily by judicial candidates, if they choose, with the details disclosed only to officials who would ensure that contributions stay within the legally prescribed limits.
Second, we have it on good authority that, on occasion, circuit court judges seeking re-election band together as a slate, the “sitting judges,” even when a consensus exists that one of the sitting judges doesn’t deserve re-election. This, we are told, is compelled by the current system: It is just realpolitik. Forgive us if we are not sympathetic. This is not Tammany Hall or, at least, it should not be for anyone called Honorable.
The dissent is filed.
Editorial Advisory Board members Arthur F. Fergenson, Nancy Forster, James Haynes, Ericka King, Stephen Meehan, C. William Michaels, Angela W. Russell and Vanessa Vescio took part in this editorial.t