The Attorney General of Maryland, Douglas F. Gansler announced this month that he will urge the 2010 Maryland General Assembly to pass legislation that would eliminate contested judicial elections for circuit court judges and instead enable voters to decide every 10 years whether a circuit court judge should continue on the Bench. Presumably that decision would be based on the demonstration by the judge during the previous 10 years of the proper judicial temperament, intelligence, strong personal and professional ethics, courage and integrity, experience, education, personality and work habits and attitude suitable to the court’s workload and its subject matter jurisdiction and not the emotional and usual hodge-podge of irrelevant issues which tend to dominate judicial elections. In doing so, the Attorney General stated the obvious and existentially verifiable conclusion that “these people (judges) don’t want to be politicians, they want to be lawyers – they consider a judgeship the crowning achievement of a legal career.”
This newspaper (The Daily Record) followed shortly thereafter with a lead editorial endorsing this change which has been sought for many years by the Maryland State Bar Association, this newspaper, other editorialists as well as many legal, political and civic leaders in this state. But alas to no avail! For a variety of historical, political, cultural and economic reasons the voters of this state have never been given the opportunity by the Maryland General Assembly to vote on this proposal which has been presented many times as a proposed Constitutional Amendment to the legislature for over a quarter century and rejected in most cases without a vote by either the full House or Senate chamber. The political reasons for this are geographically, demographically, racially as well as historically based.
In the late 60’s and 70’s, which is the beginning of this writer’s residence in Maryland, and therefore brackets my personal historical frame of reference, the opposition to the elimination of contested judicial elections for circuit court judges was based in the political and civic leadership of the African American community and in the rural and conservative parts of our state. The stated rationale for the opposition of the African American community particularly in Baltimore City, was that the threat of a qualified and politically viable African American candidate running against the “sitting judges” particularly if they were all white was necessary to leverage the gubernatorial appointment process to insure a fair representation of African American Judges on the Bench. That was certainly accepted and arguably true as we entered the 1970’s. This idea has not been easily abandoned thereafter. In fact it remains persuasive in some quarters. It qualified as “conventional wisdom” when I worked for then State Senator Steny H. Hoyer from 1971-1973 and has remained such in some influential quarters.
This instinctive and indigenous opposition of the African American community and its political leadership combined at that same time with the opposition of conservative rural and republican lawmakers, who feared that governors of Maryland, even then mostly democrats, if not contrained by the threat of a contested election would appoint circuit court judges who were far more liberal than the conservative democrats and republican elected officials in the rural parts of our state would want. Needless to say, this coalition created “strange bedfellows.” Indeed as a young and impressionable Aide to then Senator Hoyer observing the Maryland Legislature, I remember marveling that this or any issue could unite then State Senators such as Clarence Mitchell, III and Frederick C. Malkus, whose interests and values were otherwise so diametrically and unalterably opposed at that time in our state’s history. Nevertheless at least remnants of that coalition have stuck together and the rationale for their continued combined opposition to the elimination of contested circuit court elections presumably is still valid in their minds.
Or maybe not! There are also some underlying and in some cases unstated but very real political and economic motivations for certain politicians and their supporters to continue to oppose the abolition of contested elections for circuit court judges.
One is that the current system gives certain politicians and their supporters who have a demonstrable electoral and/or fundraising base a real and inordinate influence and power over which judges and judicial candidates are appointed and elected to the circuit courts of our state. This reality is never discussed except in political circles and never acknowledged as a reason for perpetuating the current system for the very simple reason that the present system cannot be defended if this reality is acknowledged.
In order to defend the current system while acknowledging this reality, the beneficiaries of that system would have to concede their willingness to compromise our “independent judiciary” which former Supreme Court Justice Rehnquist described as “one of the crown jewels of our system of government” in order to perpetuate their own political and economic selfish interest. This is not a position that is likely to be embraced by many voters regardless of which demographic they belong to or where they are situated geographically.
39 States still hold contested judicial elections. Those elections are increasingly contested and bitter. They are as “The Economist” magazine has recently observed “part of an escalating war between business groups and trial lawyers” which is evidenced by spiraling fundraising multiplying annually at an alarming rate.
Maryland is not immune to that trend. The state and local fundraising data showing a significant increase in dollars raised with each successive judicial election further evidences that fact. What happened in our neighboring state of West Virginia, as described in The Supreme Court case of Caperton v. Massey, illustrates where that trend, if not halted by the legislature and ultimately by the voters, can take us.
In 2004 in West Virginia, Don Blankenship, CEO of Massey Energy spent $3 million to elect now Justice Benjamin to the West Virginia Supreme Court. 3 years later Justice Benjamin refused to recuse himself and voted to overturn a $ 50 million judgment against Massey. The U.S. Supreme Court in a 5-4 decision said that the $ 3 million contribution created a “constitutionally unacceptable probability of bias.”
The dissenters dissented to constitutionalizing the law of recusal and in doing so literally articulated 40 questions which will now have to be answered with increasing and arguably alarming frequency a result of the majority’s ruling. What both the majority and the dissenters really did however was issue and indictment of any system of contested elections for trial or appellate judges and the inevitable solicitation of money from directly affected litigants and lawyers that accompanies it. As the Supreme Court acknowledged implicitly in Caperton v. Massey and expressly in an earlier case in 1991, there exists a “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” As long as Maryland elects circuit court judges, that tension will remain with us. We should rid ourselves of it and we can! Next month we’ll write about by whom and how this can get done.