Judge Bothe's forced retirement Nominating commissions: Time to let the sunshine in.

October 20, 1995

JUDGE ELSBETH BOTHE of the Baltimore City Circuit Court has just suffered an unprecedented slap in the face: the first sitting judge to be turned down by a nominating commission for re-appointment since the panels were established in 1970.

The public does not know why she was turned down, and that points out a serious problem with the process. Like the star chamber of 15th and 16th Century England, these commissions operate in secrecy, and are free to be as arbitrary and capricious as they like.

That is not fair to candidates for nomination -- especially sitting judges -- and it is not fair to the public.

Every other court in the state -- and in the federal system -- has an open process for considering nominees for judgeships. It is called senatorial advice and consent. This is generally observed in the breach in Maryland, but the state constitution does require for nominees to appellate and district court judgeships. Anyone who wants to object to those nominees must do so out in the open and on the record.

Judge Joseph H. H. Kaplan, the circuit administrative judge for the city, has said publicly that he told members of the nominating commission a 68 year-old judge like Judge Bothe should not be re-nominated. (The state constitution requires judges to retire at 70.)

But Judge Kaplan and Judge Bothe have had some serious personal and professional -- some would say political -- disputes over the years. We suspect those disputes rather than age may have had more to do with the decision by the judge and the commission (some of whose members may also have had personal or political reasons to reject her).

One way or another judgeships are political. Thus, the process by which someone becomes a judge should be as open and above-board as possible. Defenders of nominating commissions say confidentiality is necessary to protect applicants for judgeships. Nonsense.

Secrecy is especially wrongheaded in the case of Judge Bothe, who is said to be willing to waive confidentiality. If that is true, denial of the public's right to know what her case is all about serves only to protect silent commissioners and detractors.

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