Selecting the Best Judges- Who, How and Why?

Governor O’Malley has now issued Executive Orders creating the Appellate Court and all of the Trial Court Judicial Selection Commissions and those Commissions have begun to prepare to do their job of selecting the men and women who will be judges in the State of Maryland.

From December 1996 until it issued its Report on December 20, 1998, this writer had the privilege of co-chairing with Nell B. Strachan, Esquire, a Special Committee of the Judicial Administration Section of the Maryland State Bar Association which addressed among other topics, the “Recruitment, Qualifications, Selection, Appointment and Retention of Judges in Maryland”.  This column, and several that follow, will highlight the Findings and Recommendations of that Special Committee which I believe to be as timely and relevant today as they were nine years ago.  That Report was “Received”, not without controversy, by the Board of Governors of the MSBA and with varying degrees of enthusiasm by the Bench and the Bar around the state.

The  controversy raged largely because of the recommendation for “Judicial Evaluations” which will be discussed in a future column.  Today we will highlight the Committee’s Findings and Recommendations for selecting and retaining high quality judges in Maryland.

Judges of the highest caliber are universally desired.  Judges are viewed as the impartial arbiters of societal disputes; the repositories of wisdom about the law and its application to humans and their organizations; the pourers of oil on troubled waters; the parsers of the legal complexities; the most respected and esteemed members of the legal profession.  There is agreement without dissent that they should be as well qualified as possible.

The current system for recruiting and selecting judges is not premised on any stated list of qualities to be sought in judges, although the Judicial Nominating Commissions are directed by Executive Order to nominate only those “legally and most fully professionally qualified”.

It is widely believed that a key component of high quality on the bench is finding and appointing the right people, that is, those with the personality, the ability, the commitment and the sound judgment to conduct themselves properly on the bench.  To maximize the opportunities to make quality appointments, there should be clear identification of the qualities sought in a judge, coupled with careful screening and investigation of candidates.  All aspects of a candidate’s background should be evaluated: performance under pressure and stress; interpersonal relationships in the office and outside the office; commitment to public and civic affairs; people skills; reputation for integrity and good character.  Knowledge of the law and good writing skills may be essential, but other qualities are as well.  It is on these other qualities that additional attention should be focused.

The question is what methodology or system should be used to insure the recruitment, selection and appointment of “the very best judges” from those applicants who are “legally and most fully professionally qualified.”

The Special Committee, whose membership was diverse and balanced by race and gender, as well as by geography, experience, and perspective identified eleven characteristics that should be sought after in all judicial applicants.  They will be individually focused on and discussed in my next column because of limitations on the space remaining in this one.  Suffice it to say that for this column’s purpose, these characteristics are those of personality and temperament, as well as those of education, training and experience.  While the characteristics of high quality jurists are relatively clear, there is less certainty in how to measure or rank these attributes.  Is personality or temperament more important than writing ability?  Is experience as a trial lawyer more important than academic merit?  Is the maturity of many years in practice more important than the freshness and enthusiasm of a young person?

There is even less uniformity on whether other factors or societal goals, such as diversity on the bench, political sanguinity or having a particular area of expertise, should play a role in selecting or ranking candidates.  Additionally, views differ as to whether great judges are “found” with the Bar or whether capable lawyers can be “trained” or “taught” to be great judges.

There is, however, widespread agreement that personality, temperament and personal style are essential to capable performance as a judge, and these qualities seldom, if ever, change for the better because of a judicial appointment.  It is widely believed that the power, status and prestige of the position frequently permit judges to display or manifest bad temper, make inappropriate remarks or behave badly because there is seldom the immediate, negative feedback that more typically such conduct would elicit.  “Black Robe Fever” or “Robitis”- the syndrome by which elevation to a judicial position generates arrogance and disdain for the perspectives of others- is seldom addressed or corrected.  In fact, one jurist, who has been a colleague and a friend for even longer, defined “Black Robe Fever” as the process by which donning a ‘judicial robe’ brings out every latent character defect in an individual.

This augers for altering and expanding the way applicants for judicial offices are recruited.  The current system essentially amounts to self-selection coupled with screening by political and interest groups, State, Local and Specialty Bar Associations, elected officials and community activists and groups.  Serious consideration should be given to identifying the specific qualities which should be searched for in a judicial applicant as well as how to recruit individuals exhibiting them for judicial office.  Those qualities will be identified in my next column.  Read about them in two weeks.

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