Ex-Justice O'Connor favors end to electing judges

Support voiced for Gansler proposal to appoint members of Circuit Court

March 04, 2010|By Annie Linskey | annie.linskey@baltsun.com

Former Supreme Court Justice Sandra Day O'Connor says she is "all for" a proposal that would end competitive elections for Maryland's Circuit Court judges, championing a concept that is attracting new attention in Annapolis this year because of loosening campaign finance rules and increasing concerns about money flowing into judicial races.

"The independence of the judiciary is something that we all ought to care about," O'Connor said at a hearing in Annapolis on Wednesday afternoon. "And we will protect it most by having a merit system."

O'Connor was among a panel of judges invited by Maryland Attorney General Douglas F. Gansler to express support for his judicial reforms. His proposed legislation would give the governor the power to appoint Circuit Court judges to 10-year terms. Marylanders could vote to retain the judges after that - but any judge tossed out would be replaced by a gubernatorial appointee.

Currently, any lawyer who has practiced for more than five years can run for a Circuit Court vacancy. Gansler's measure would have to be approved by the voters since it would change the Maryland Constitution.

Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch say they support the idea but that passage is far from certain. The state's voters have been reluctant to change the system, twice rejecting attempts to end judicial elections.

However, lawmakers are taking a fresh look at the issue this year in part because of a pair of recent Supreme Court decisions. One knocked down federal campaign finance restrictions on corporations and labor unions, a decision some believe could cause similar state laws to be re-examined.

Another case arose after the chief executive officer of a company contributed $3 million to support a sympathetic candidate's campaign for a seat on the Supreme Court of Appeals of West Virginia. The judge struck down a $50 million judgment against the company. The U.S. Supreme Court ruled that the judge should have recused himself.

"I think we've had enough experience to know it [judicial elections] does not work today," said O'Connor, referencing those two decisions. "This is a concern. It ought to be a concern to every state that still elects judges."

Detractors say the change would wrest power from the electorate and put it in the hands of the governor, who could pack the benches with political cronies.

They point to track records of recent Democratic governors: Of the 144 judges appointed by Gov. Parris Glendening, 13 were Republicans, according to figures kept by Christopher R. West, a corporate lawyer and Republican who tracks party affiliations of the judiciary. Gov. Martin O'Malley has appointed 56 Circuit Court judges, and three are Republicans, he said.

Former Gov. Robert L. Ehrlich Jr. was more evenhanded with his 72 appointees, according to West - 52 percent were Republican and 48 percent were Democrats.

Baltimore defense attorney William H. "Billy" Murphy, who once ran successfully as a Circuit Court judge, said the plan would create an environment where "you have no idea what is going on behind closed doors.

"With the electoral system, you will know. If you don't like it, and it stinks, you can do something," Murphy said. He noted the recent appointment of the Senate president's son to the Anne Arundel County District Court.

Most of the state's judges don't stand in contested elections - those on the District Court are appointed, and appellate level judges face retention votes. When vacancies occur on the Circuit Court bench, candidates are vetted via a series of commissions and then appointed by the governor. To win their full 15-year terms, their names must appear on the ballot for the next general election. Attorneys practicing for more than five years can also run in those elections.

Those elections are tough on incumbents because they are ethically barred from talking about specific cases before them. Also, the issues lend themselves to distortion.

"It is very difficult to have a thoughtful contested election for a judge," said Sen. Brian E. Frosh, a Montgomery County Democrat who supports the change. "What happens is everyone says I'm going to be tougher on crime than the next guy," he said.

The election process also creates awkward situations where judges raise money from lawyers who appear before them in court. Court of Special Appeals Judge Alexander Wright said he recently received a fundraising letter that offered contributors an "executive session" with the judge for an extra $1,000.

"Perhaps $100 is not something that is going to raise an eyebrow," he said. "But $1,000? ... Doesn't that have the appearance of impropriety?"

But opponents say campaigning, as distasteful as some might find it, is one of the few ways the public can participate in the court system.

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