Justice a la mode

September 25, 1996|By George W. Liebmann

IT IS SAID THAT the road to hell is paved with good intentions. So it is that Maryland feminists, together with an eager governor and a pusillanimous legislature, incensed by ''insensitive'' comments by two Baltimore County judges in sentencing proceedings, have placed on the November ballot a proposal to enlarge the state's Commission on Judicial Disabilities.

That would subject the commission to control by the state's governor -- an invasion of judicial independence virtually unparalleled in the common-law world.

The Commission on Judicial Disabilities was created as a means short of impeachment for removing from the bench senile, drunken or corrupt judges. Its processes contemplated investigations before a panel of seven members, four of them judges and all but one members of the bar. Their deliberations were to remain secret unless public sanctions were agreed upon. For sanction, the panel's rules appeared to require more than a single instance of disability or misconduct.

Two highly publicized cases have led to changes in the commission's procedures. Judge Thomas J. Bollinger was reprimanded for comments made from the bench in granting probation before justice to a man who raped an unconscious teen-ager in his bed. And Judge Robert E. Cahill Sr. was acquitted of improper conduct for remarks appearing to express sympathy for a man who killed his wife after he caught her in bed with another man.

Hearings are now held in public and may even be televised. A single instance led to Judge Cahill's disability proceeding. And in addition to the former sanctions of reprimand or recommended removal, a new device, bearing the Orwellian name of a ''deferred discipline agreement'' has been created. A judge coerced into accepting such an agreement may be compelled to undergo treatment, participate in ''educational programs,'' issue an apology or take other specific corrective action.

The proposed constitutional amendment on the November ballot vastly compounds the effect of these recent changes. It would enlarge the commission by giving it five lay members, chosen to reflect race, gender and geographic diversity, and three lawyer members. All these would be appointed by the governor. Judicial membership would be reduced from four to three. Few are the judges that cannot be ''gotten'' by a commission composed largely of gubernatorial appointees.

Nearly 30 years ago, Maryland's Sen. Joseph Tydings proposed the creation of federal judicial-disability commissions. The objections to them were memorably summarized by Professor Philip Kurland: ''When dealing with so fragile a notion as the independence of the judiciary, we ought to tread warily lest the ultimate cost outweigh the minimal gain. . . . Tools created by the well intended for beneficial uses may fall into less worthy hands and be used for less appropriate ends.''

Not even in South Africa

The advantage of settled judicial tenure in troubled times is clear. Only judges of secure tenure will expose police abuses by the executive, or enforce unpopular constitutional commands, such as those in favor of free speech and against racial discrimination. Even South Africa under the apartheid regime did not impair judicial tenure (as distinct from judicial review of legislative acts). The career of a Justice Goldstone, who brought the white population face-to-face with the police abuses committed in its name, would have been impossible under anything like the newly proposed Maryland system.

This proposal is shocking for what it says about its authors' grip on basic principles. Forty years of compounding the casuistries of the Warren Supreme Court have left too many lawyers unable to see a real menace to liberty when it appears. To confer powers to publicly try, censure and initiate removal proceedings against judges on part-time appointees of the executive is to render the judiciary subservient to a willful governor or to public prejudices.

Curbs on judges are best left to vigorous press and public criticism, not lacking today, and to rare impeachments by real politicians in the General Assembly, who have some experience in gauging the public will, not to part-time appointees, with no independent power bases of their own, whose principal concern will be to avoid criticism from the governor who appointed them or from shrill interest groups. This project is a disgrace to the governor who proposed it and, if approved by the voters, would be an embarrassment to all who have associated themselves with it.

George W. Liebmann is a Baltimore attorney.

Pub Date: 9/25/96

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