My last few columns have discussed “Facing the Challenge of Finding and Picking Good Judges” and “What Skills and Characteristics Should our Judges Possess?”, as well as in the column proceeding this one- How to Implement the MSBA Special Committee’s recommendations for selecting and retaining the “legally and most fully professionally qualified judges.” These recommendations include broadening the current selection process from one best described as “self-selection coupled with screening by political and interest groups, state, local and specialty Bar Associations, elected officials, community activists and groups” to a more structured system based on the qualities of a good judge identified in my previous column published on November 2, 2007.
What effect does the current “system” of screening judicial applicants and, in the case of Maryland Circuit Court Judges, electing them in a hybrid partisan election, have on the ability of the system to recruit, nominate, appoint and retain the best and the brightest Judges in our state? First of all, this system may not be a “system” at all. Even though there is a prescribed application form and procedure which begins the process and must be completed in order to be considered first by either the Appellate Court or Trial Court Selection Commissions and ultimately by the Governor, that beginning and end of the process is where the similarities stop. What happens in between, as well as before and after the application by the individual, nomination by the Commission and the appointment by the Governor varies from geographic jurisdiction to jurisdiction, court to court, and even appointment to appointment in the same jurisdiction. After the formal application is completed, there are a series of interviews with various interested political and professional groups, organizations and individuals. These change off and on over time and even from appointment to appointment depending on who the Governor is and who he is getting advice from on judicial appointments in a particular jurisdiction or atatewide in the case of our two Appellate Courts. Also, as I have noted, the decisions of a political or civic organization, Bar Associations as well as other professional, trade or community organizations are usually grounded on whether the organization perceives that the applicant for judicial office is sympathetic to their political, parochial, ethnic or professional agendas and concerns and not on whether the applicant exhibits the qualities of a good judge.
My own experience is illustrative. I was appointed to the District Court by Governor Harry R. Hughes in 1986 and to the Circuit Court by Governor William Donald Shaeffer in 1990. The Executive Order of these two Governors, which set up the structure and procedures to be followed in the Nomination and Appointment processes, were very similar. That is all that was similar. There were a few constants such as the involvement of the Maryland State Bar Association, the local Bar Associations, The J. Franklyn Bar Association and the Monumental Bar Association in endorsing applicants. But the number and nature of the organizations and the identity of the individuals who were involved changed during the years in between my appointments.
In 1986, the Women’s Bar of Maryland, and its local chapters were just beginning to interview and endorse judicial applicants. Other Specialty Bars were not involved to the extent they are today or even to the extent they were a little over three years later in 1990. In addition, Governor Shaeffer’s orbit of advisors on judicial appointments were quite different than those of Governor Hughes just as no doubt Governor Glendening and Governor Ehrlich’s were totally different as are Governor O’Malley’s.
As some of us who have sought appointment to judicial office have said, “If the local Garden Club was endorsing we’d be there to be interviewed because you never know if a member of the Garden Club knows the Governor, the Governor’s spouse or even a friend of the Governor. No point in taking any chances”.
As one who was selected and remained on the “List” of individuals selected by two very different Trial Court Selection Commissions and forwarded to both Governor Hughes and Governor Shaeffer who appointed me as a Judge of the District Court and the Circuit Court respectively, each time I applied, I have no complaints about either of those Governor’s procedures and certainly no issues with their results. Nevertheless, I can’t help but note that although I was appointed to the Circuit Court the first time I applied, I was on the List for the District Court five times albeit for a comparatively brief time- 15 months before I was appointed. During that 15 months while being considered for different appointments, I went from not even being on one of the endorsing organization’s list of their prioritized choices to being their top and overwhelming choice within a period of less than three months. This could be characterized as a remarkable odyssey in which my qualifications apparently increased in 90 days to a degree previously unheard of in the annals of judicial selection politics. A more likely and plausible explanation however is that circumstances changed and influence by my supporters was felt that were not present three months earlier.
I also recall getting the endorsement of another organization just getting started in the judicial nominations endorsement business in 1986 by what “informed sources” described as an 11-10 vote strategically called for and taken when one of my non-supporters on the Board of that organization went to the Rest Room.
The central message here is that although the process, procedures and protocols followed in the selection of judges are improved today they should be fine-tuned much further as suggested in my earlier columns by structuring the process to focus the decision-makers on selecting judges who possess the qualities set forth in my column published November 2, 2007.
I do not say this out of naiveté. I recognize that you will not, and perhaps should not, take politics out of the process of appointing judges as long as the appointing authorities first name is “Governor”. I do think that structuring the discussion of the Governor, his advisors and his Judicial Selection Commissions on the qualities to be sought in a judge and focusing their attention on whether an applicant for judicial office possesses those qualifications and not so much on political and parochial concerns is both an admirable and practical goal which is worthy of our attention and effort.