Well, not withstanding almost unanimous editorial endorsements, the leadership of Maryland Attorney General Douglas F. Gansler, the high profile visit to Annapolis of former Supreme Court Justice Sandra Day O’Conner who has since her retirement devoted a great deal of her time to campaigning to abolish contested election of judges in the 39 states in this country including Maryland which still have them, the people of the state of Maryland will likely once again not be given the opportunity to vote on whether they want to abolish contested elections of circuit court judges. In light of recent Supreme Court decisions deregulating their financing and complicating the law of judicial recusal resulting from these contested judicial elections, that portends less confidence, and more issues surrounding the independence and integrity of this state’s judiciary in the future. The reasons that this issue will once again not be addressed by the Maryland General Assembly and therefore by the people of this state were described in my column published in this newspaper on Friday, January 29, 2010. They were accurately characterized editorially then in the headline “The Tangled History of Judicial Elections.” Those reasons are historical, political, cultural and economic. They have not changed although their voices have slightly modulated and their faces have diversified and shifted. It is ironic however that the very same legislators and their supporters who insist that “the people” should have a right to elect their judges combine in a coalition with a few of their “leaders” to make sure that those same “people” are not provided with the opportunity to vote on whether to continue the current system, the merits if which are certainly debatable and deserving of further consideration by the voters. The stubborn legislative inertia on this issue is driven by the following legislative and political realities which again are explained by the historical legacy described in my January 29, 2010 column. That legacy currently manifests itself in the position of certain leaders of both the legislative and judicial branches of Maryland’s government. The answer to the question of whether that legislative inertia can be overcome is “Yes We Can”, but not easily. In fact it is analogous to the often discussed subject of how to change the political culture in Washington. On this issue, substitute “Annapolis” for “Washington”. It will take time, read a few years not a few months, but here is a 4 – Step Program which sets forth how it could be done. (1) The Chief Judge of the Court of Appeals of Maryland Robert M. Bell, who historically has been one of the leaders and as might be expected the most articulate spokesman for the opposition to the abolition of contested circuit court judges, on information and belief has “evolved” to a position of neutrality since becoming Chief Judge and by virtue of that role, a spokesman for all judges. He will need to become an advocate for change- the abolition of contested election of circuit court judges. There are many other judges and more importantly legislators who queue off the Chief Judge’s position. If he shifts, they shift. The change and the momentum would be huge and noticeable. (2) Delegate Joseph Vallario, Chairman of the Maryland House of Delegates Judiciary Committee, has historically been opposed to the abolition of contested election of circuit court judges. His opposition has driven many members of his committee in a similar position. He should in conjunction with or at least contemporaneously reconsider his position and in doing so engage the members of his committee in a similar exercise. Since this committee has on more than one occasion in the last quarter of a century been the graveyard in which proposals to submit to the voters a constitutional amendment to abolish contested election of circuit court judges have been buried, the committee should change its mission to one of life- giving to the proposal (3) The Governor, the President of the Senate and the Speaker of the House of Delegates as well as other legislative leaders should make this a priority after the next election and join with other political and civic leaders to make it happen. (4) The Maryland State Bar Association should continue its work and leadership on this issue both in the short- term and long-term by restarting its historic advocacy the MSBA should make it a priority of the abolition of contested election of circuit court judges. The MSBA should make a priority of educating first legislators and then if the proposal can be placed on the statewide ballot, the voters on the advantages in the form of increased real judicial accountability of retention elections based on truly objective, diverse and rigorous judicial performance evaluations. This fourth step has not been and would not be without controversy. The Maryland State Bar Association has for many years recommended that there be an ongoing program of judicial performance evaluations of all judges within the state. Some of these proposals have proceeded further than others. None have proceeded further than the “pilot program stage”. All have ultimately not gone forward because of issues related to maintaining their confidentiality including their potential abuse in contested judicial elections where the judge’s performance evaluation would be disclosed while his or her self-selected opponent would not have any evaluation which could be disclosed, thereby putting the sitting judge in an unfair and untenable electoral position. It is for this reason and candidly other internal reasons related to the nature of judicial office, quality of personal and professional life issues including “stress management”, the personalities of the individuals who seek and attain judicial office and the difficulty of designing a system of judicial performance evaluations which would fairly and efficiently serve the several purposes all would wish them to serve that energize the opposition of judges to judicial performance evaluations. These concerns have historically coalesced to produce in the past and I would guess currently strong opposition to any official judicial performance evaluations within a significant segment of the judiciary itself. That opposition is certainly not confined to circuit court judges although it probably is most strongly felt and spoken within that group because of their unique exposure to contested elections. That widespread opposition would have to be overcome in order to institute a program of fair and rigorous judicial performance evaluations which could truly provide the real and meaningful judicial accountability when coupled with retention elections of all judges that Maryland’s citizens deserve. That accountability is to the Rule of Law not the judge’s personal preferences and ideologies or those of their electoral or financial supporters. How to do that will be the subject of my next column.
