Clean up judicial elections

Retention voting for circuit courts would remove the taint of money from the process

January 10, 2010|By Douglas F. Gansler

When it comes to our judiciary, impartiality has always been Marylanders' chief concern. Unfortunately, that value is threatened by the current practice of contested elections for circuit court judges, which exposes judges to influence peddling, bias and political whim.

Money is often a favored tool of partisan influence, and Maryland's candidates for circuit court judgeships received an estimated $3.9 million in contributions between Jan. 1, 2003 and Dec. 31, 2006, a figure that will only grow in future contested elections. Many of these contributions come from corporations and individuals facing litigation in circuit court, potentially before the very judges to whom they contribute.

This unseemly cash flow threatens impartiality, as the U.S. Supreme Court recognized last term when it ruled that a CEO's large contribution to a state court judge's election campaign disqualified that judge from sitting on a case involving the CEO's company. Campaign cash also erodes public confidence in the judiciary; surveys show more than 70 percent of the public believes elected judges are influenced by campaign contributions.

Worse, recent history shows that Maryland's contested judicial elections are often swayed by politicking and outright bias. Between 1996 and 2004, four sitting circuit court judges lost their seats when made to stand in contested elections. Two of the four lost in a race in which they were pegged as "Glendening appointees"; scant attention was paid to their legal abilities. More troubling, three of the four were African-American judges sitting in predominantly white counties. Indeed, minorities remain underrepresented on the circuit court bench in almost every county in Maryland.

It is clear from these examples that contested judicial elections fail to advance the goal of an impartial bench. That is why I am proposing legislation that will eliminate contested elections for circuit court judges and replace them with retention elections.

Under the system I am proposing, circuit court judges would continue to be selected initially by a judicial nominating commission that, in the words of the state constitution, seeks judicial nominees "most distinguished for integrity, wisdom and sound legal knowledge." After appointment by the governor, they would stand for retention in the next election cycle and every 10 years thereafter.

Standing for retention would involve a simple "yes" or "no" vote for a sitting judge; no other candidates could run against that judge. This would eliminate the need to raise large amounts of campaign funds and the potential for judicial contests that turn on party, race or gender. If the people feel the judge's impartiality is in question, the retention vote offers them a tool to hold the judge accountable, but stops short of offering them a means to fuel their own partiality. If a judge is not retained, the appointment process starts over again.

This approach - combining appointment with retention elections - is neither new nor radical. When the state adopted its first constitution in 1776, its authors shared Alexander Hamilton's view that the judiciary should be shielded from shifting political winds and from judges' own temptation to "consult popularity" in rendering their decisions. They recognized that judges are not legislators; their obligation is to the law, not the currents of popular opinion. And so, under that constitution, judges were appointed to life terms by the governor, with the advice and consent of the state Senate, mirroring the federal Constitution's approach.

Marylanders later amended the state Constitution to create retention elections for our state's appointed appellate court judges, and this combination has been working well for more than 30 years. More than a dozen other states are also using some combination of judicial appointments and retention elections, sometimes called the "merit plan." The Maryland State Bar Association, the League of Women Voters of Maryland, and the chairwoman of Maryland's Conference of Circuit Judges all support the expansion of our state's existing merit plan to include our circuit court judges.

As retired Supreme Court Justice Sandra Day O'Connor has said, "A judge's sole constituency should be the law." It is time we act to better protect the impartiality of our state's circuit courts and enact a merit plan. I urge the members of the General Assembly to adopt this approach in the upcoming legislative session.

Douglas F. Gansler is the attorney general of Maryland. His e-mail is oag@oag.state.md.us.

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