Diversity of State’s Courts Become the Issue in Debate Over Judicial Appointments – Maryland Matters
A campaign flyer for Marylin Pierre, who unsuccessfully challenged four seated Montgomery County Circuit Court judges last year.
How Maryland judges are appointed – and how they try to keep their seats – has been a hot topic on the House Judiciary Committee this week, as has been the case at previous General Assembly sessions.
As is becoming more common in Annapolis, the race was often the focus of the debate.
Maryland’s chief judge, Mary Ellen Barbera, testified Wednesday that the judiciary has become much more diverse in recent years.
“I’m proud that our courts are so much more like the people they serve than they used to be,” she told lawmakers.
But not everyone who spoke was convinced that progress was sufficient – or that justice in Maryland is color blind.
Voters appear to have taken note of this recently: three seated Circuit Court justices, all white and all appointed by Governor Lawrence J. Hogan Jr. (R), were defeated by black challengers in last fall’s election. A fourth white judge appointed by Hogan dropped out of his re-election race after running out of money in Democratic Elementary School and was also replaced by a black lawyer.
“In certain parts of the state, if you want to put up a seated judge’s board [in an election] and all of these judges are white, you have to know that some of these judges are going to lose, ”Del noted. Wanika B. Fisher (D-Prince George).
The committee testified to two bills that would change Maryland’s judicial elections – elections that governor-appointed judges must stand in order to achieve long terms. The conversation, however, essentially boiled down to how best to diversify the Maryland bank – judicial officer appointments versus open general election.
The governor appoints judges in the state after reviewing the recommendations of the judicial review bodies that review applicants. How long judges serve and how they are given the right to remain in the bank varies from court to court.
For the district court, the lowest in the state, judges are appointed by the governor for a ten-year term and approved by the state senate. You do not have to go in front of the voters after confirmation.
For the state’s highest court, the appeals court, and the second highest court, the appeals court, judges are appointed by the governor and confirmed by the senate. In the next state elections, they will have to apply for election campaigns in which voters will be asked whether the judges should keep their jobs. If they prevail, they have a ten-year term.
Circuit court judges are also appointed by the governor, but do not require Senate approval. And instead of participating in elections where voters may or may not grant judges a full term, the Circuit Court elections allow challengers to compete against incumbents in elections that can get messy and confusing for voters.
Traditionally, seated judges converge as a slate, and while that is not a guarantee of victory, they usually prevail. Last year’s results, with four Circuit Court justices being denied full terms by voters, were an outlier – unless they herald a new trend.
“What if the governor does something wrong?” asked Del. Debra M. Davis (D-Charles), who found voters in her black-majority county replaced a white judge with a black woman last fall.
Two similar bills before the Judiciary Committee would change the way judges keep and try to keep their jobs. House Bill 447 by Del. Kathleen M. Dumais (D-Montgomery) is calling for a constitutional amendment that would allow Circuit Court judges to be appointed with Senate approval and then run in elections to maintain rather than open fighting. Under the terms of the Bill, the term of Circuit Court Judges would be reduced from 15 to 14 years while the term of Appeal Court Judges would be increased to 14 years.
House Bill 35 by Del. Jon S. Cardin (D-Baltimore County) also envisages a constitutional amendment calling for Circuit Court Judges to be appointed and then retained for 12 years in one election, while Appeals Court Judges would be increased to 12 years.
Barbera and two other lawyers, Montgomery District Court Judge Bibi M. Berry, who just won a full term in November after being appointed by Hogan in 2019, and District Court Judge Keith A. Baynes, whose judicial district has five counties on the east coast, testified in favor of both bills. They argued that the circuit court’s wide-open electoral process posed a threat, as judges screened by a screening panel could be ousted by challengers without the same qualifications – even some who have been rejected by a judicial nomination panel.
As Del. Daniel L. Cox (R-Frederick) noted that the challengers chosen in November “all appeared to be excellently qualified,” Berry disagreed, but said these types of elections were too risky.
“That’s the crux of the problem – we don’t know, can’t know” whether challengers are qualified.
Berry also described campaigns as awkward moments – being asked by voters or on campaign forums which political party they belong to and their opinions on hot-button issues like abortion that aren’t really relevant to the job.
Both Cardin and Dumais said that the judicial review commissions under Hogan and his recent predecessors, Democrats and Republicans, worked to diversify the bank and that the appointments reflect that commitment. However, some lawmakers said they are still not seeing the results they want.
“That was a big deal in Anne Arundel County, where we recently appointed an African American woman [to the bench]”Said Del. J. Sandra Bartlett (D-Anne Arundel).” If you want to give the governor white male candidates, who will the governor appoint from golly? “
Proponents of the Cardin and Dumais bills noted that changing the Circuit Court races in campaign elections still gives voters some say in the judiciary. And they argued that eliminating multiple-candidate elections would make big money out of the process.
Marylin Pierre, who has unsuccessfully run for judges nine times and twice questioned the choice of Montgomery County judges in elections, said such a choice was insufficient.
“The right to vote is the right to vote for the candidate of your choice,” she said, arguing that she was just as qualified as any of the appointed judges (Dumais praised Pierre as a passionate and energetic lawyer, but stopped saying she deserved to be a judge become).
Speaking to a group of lawmakers elected to their positions, Pierre added, “Wonder if you would be here if you had to go through such a review process.”