~ Reaffirmation ~
~ Opposition ~
For the last three decades, the Maryland State Bar
Association (MSBA) has supported the abolition of judicial contested
elections. MSBA has consistently opposed the contested election of
circuit court judges for ethical, political, campaign, judicial
independence and monetary reasons. On September 18, MSBA’s Board of
Governors (BOG) reaffirmed the Association’s position to abolish
judicial contested elections and support legislation to this effect in
the 2008 Maryland General Assembly.
MSBA would like to see politics removed from Maryland’s judicial selection process. The Association fears these elections inadvertently transform judges into politicians and push them into the fray of partisan politics, contradicting judicial ethics. This threatens the independence and impartiality of Maryland’s Judiciary and erodes the public’s trust and confidence in our legal system.
One of the key reasons MSBA opposes contested judicial elections is that all sitting judges are thoroughly screened and evaluated by Maryland’s Judicial Nominating Commission before they are recommended to the Governor for appointment as circuit court judges. Many of these judges are also assessed by their local and state bar associations. Thus, these jurists have completed a rigorous interview, evaluation and selection process to ensure that their skills, judicial temperament and qualifications meet the high standards of a Maryland circuit court judge.
But, attorneys who have not been through this process are increasingly challenging sitting judges, forcing contested judicial elections. These challengers have not been through the evaluation process outlined above, so voters are unable to assess their judicial traits. Yet, these challengers are unseating sitting judges who have been qualified at an alarming rate. This is especially troubling because a high number of minority judges are the ones being removed from the bench in contested elections.
“Historical support for the current contested election system is based on the idea that elections open doors for minorities to ascend to the bench,” explains Rachel McGuckian, Chair of MSBA’s Litigation Section and Co-Chair of the Judicial Appointments Committee. “Although this may have been the case decades ago, the opposite is true today. In the past decade, of the five sitting judges who lost elections, three were African-American males, one was an African-American female, and one was a Caucasian male. All five of the lawyers who successfully replaced these sitting judges were Caucasians, four male, one female.”
This is one of the concerns that prompted MSBA’s Litigation Section and Judicial Appointments Committee to join forces and seek the Association’s endorsement of the abolition of judicial contested elections. At the September BOG meeting, McGuckian, along with Judge Alexander Wright, advised Board members of the ethical dilemmas these contests pose as well as the campaign expenses borne by the sitting judges.
“I spent over $330,000 campaigning in two judicial elections,” asserts Wright, who was unseated twice in contested elections. “Campaigning and fundraising are expensive; the cost of fundraising events can go as high as $1,000 a ticket for VIP events.” In addition to the expense, Wright emphasized the ethical dilemma. “Most of the funds come from attorneys, businessmen and women and people who appear before the judges in court.”
Contested elections also discourage attorneys from seeking seats on the bench as they are “hesitant to give up their law practices when they face the possibility of losing their seat on the bench in a contested election,” says Wright. Additionally, “these contests dissuade district court judges from giving up their safe seats in district court,” he adds, because they know at the circuit level they must run in a contested election to retain their seat.
Therefore, MSBA supports the abolition of contested judicial elections in Maryland. To this end, MSBA is backing proposed legislation in the 2008 Maryland General Assembly to “amend the Maryland Constitution” and “provide for retention elections following an appointment to fill a vacancy in the office of a judge of a circuit court.” If passed by the Legislature, this Constitutional Amendment will appear on the ballot in Maryland’s 2008 General Election so that citizens may vote on this issue.
MSBA endorses this proposal because it allows sitting judges to run on merits of their judicial records in retention elections. The Association believes the merit selection of circuit court judges promotes judicial accountability and ensures the most qualified jurists serve on Maryland’s bench. MSBA will work closely with the Legislature to urge favorable passage of this legislation.
Maryland’s sitting judges are well-respected and of the highest caliber. They have earned the respect and support of the public and the Bar. To preserve the state’s tradition of judicial excellence, MSBA supports this Constitutional Amendment calling for the retention of circuit court judges.
Traditionally, the Maryland State Bar Association (MSBA)
has opposed the contested election of circuit court judges on ethical,
political, campaign, judicial independence and monetary grounds. The
Association has never supported contested judicial elections as they
threaten the Judiciary’s independence, force sitting judges into
partisan politics and present ethical conflicts for circuit court
judges. For 30+ years, MSBA has supported the abolition of contested
In Maryland, circuit court judges are the only members of the bench who must stand for contested elections. The Governor initially appoints all judges after the candidate has undergone an extensive screening and evaluation process by independent judicial nominating commissions, as set forth by Executive Orders since 1976. District court judges serve for 10 years, then may be reappointed by the Governor with Senate consent, while appellate judges run in retention elections.
However, circuit court judges must run in the general election immediately following their gubernatorial appointment and then must stand for re-election every 15 years to retain their seats. Increasingly, sitting judges are facing contenders in these elections. Technically, any Maryland attorney over the age of 30 who is admitted to the Maryland Bar, has resided in the state for five years and has lived in the specific circuit for six months can challenge a sitting judge in a contested election.
Maryland’s sitting judges are appointed by the Governor after successfully completing a rigorous interview, evaluation and selection process. Their skills, judicial temperament and qualifications have been demonstrated to the Maryland Judicial Nominating Commission. Many have also been evaluated by local and state bar associations.
However, attorneys who have not been through this process are increasingly challenging sitting judges, forcing contested elections in a number of jurisdictions across the state. And, these challengers are increasingly unseating sitting judges who have been qualified through rigorous screening and appointed by the Governor. More and more of the defeated jurists are minority judges, and this is a major concern to MSBA.
First, MSBA opposes these contests because they push the state’s circuit court judges into the political arena. Contested elections force them to campaign and raise money to retain their seats. This subjects sitting judges to partisan politics and creates potential ethical dilemmas for the judges.
Plus, the sitting judges must shoulder considerable expense, because sitting judges must raise money, advertise, make public appearances and actively campaign for votes in contested elections. Campaigning also costs judges time, which, given heavy court dockets, is at a premium.
Compounding the campaign expenses are the ethical dilemmas sitting judges face as a result of contested elections. For one thing, Judicial Canons prohibit sitting judges from directly soliciting campaign funds, although their non-judicial opponents do not operate under these restrictions. In addition, attorneys who appear before judges in their courtrooms may contribute to the campaign, casting shadows of impropriety. Overall, contested elections present the potential for conflicts of interest.
In addition, MSBA opposes contested elections because they threaten the independence of the judiciary. Judicial campaigning not only costs judges time and money, it can compromise their impartiality. While their challengers may speak freely, make election promises and offer rhetoric that may be inflammatory or misleading, judges are bound by the Judicial Canon of Ethics.
The Supreme Court ruling on White vs. Minnesota further complicates this issue, as the Court struck down one of those Judicial Ethics rules because the rule infringes on a judicial candidate’s First Amendment freedom of speech. As the judicial ethics rules will now need to be revised, candidates for judicial elections remain properly barred from forecasting future judicial decisions, though they should be permitted to announce their philosophical and political views.
In the broader scope, contested elections discourage many qualified attorneys from seeking a judicial seat because of the expense associated with campaigning, the time investment and the possibility of losing one’s seat to a contender. Plus, the public often does not know who the sitting judges are and votes for circuit court judges on the basis of alphabetical order and party affiliation rather than judicial qualifications. Voting polls indicate that party labels and ballot positions are often more significant than judicial qualifications, an unfortunate basis on which to select circuit court judges.
Judicial campaigning further erodes the public’s confidence and already negative view of our justice system as well. A 2002 American Bar Association poll found the majority of the public “believes the impartiality of a judge is compromised by the need to raise campaign money for judicial elections.” Eliminating contested elections for circuit court judges would foster greater public trust in the legal system and allow the public to voice its opinion by voting on the individual record of sitting judges.
In lieu of contested elections, MSBA supports the merit selection of judges because it places the most qualified judges on Maryland’s bench. When judges run in retention elections, they run on the merits of their records. In this way, the public holds the judge accountable, evaluates his or her record and votes accordingly. Merit selection offers greater judicial accountability, ensures the most qualified judges serve on Maryland’s bench and continues Maryland’s fine tradition of retaining judges with the highest quality of character, integrity and judicial temperament.