I hesitate to wander into this field, particularly in an election year when there were several contested judicial elections around the state, but I would like to bring a fresh perspective to the issue of judicial elections now that the dust has settled. The pros and cons of electing judges are well known and have been debated by those with far greater intellects than mine. Accordingly, I do not intend to continue that process; rather, I proceed from the assumption that the Maryland Constitutional guarantee of judicial elections will continue despite election year debate, given that it is unlikely that any grass-roots or broad bi-partisan support exists or will exist in the near future for changing the Constitution. The question is what do we do with the process as it already exists? My thought is that we use the process as it was originally intended - to make a stronger and more respected judicial system.
Many charge that the appointment process is too limited, that the Governor only appoints Democrats, that the voters lack interest in the judicial candidates and make uniformed decisions, that often the challengers are not as well qualified as the sitting judge they oppose. Others contend that some judges were appointed merely as political favors, while some point to elections as the only way to oust a sitting judge who, in one way or another, has raised concerns as to whether they should remain on the bench. Finally, most agree that the Canons of Judicial Ethics unfairly tie the hands of a sitting judge in a campaign and that elections place the judge in an awkward position of relying on financial and other support from lawyers and litigants who later may appear before that judge in court.
With respect to the Canons, clearly there should be a level playing field between the sitting judge and the challenger; the ABA is working on that very issue, as is the Maryland Rules Committee. In addition, the Supreme Court recently handed down a decision striking restrictions on a judicial candidateís speech as violative of the First Amendment. With respect to potential favoritism in response to an election contribution or support, to my knowledge there has not been a single report of such misconduct in Maryland. In my experience, lawyers donít expect favoritism and judges donít give it. Further, the potential for favoritism is inherent in any election process. But, if elections are sufficient for the selection of our President, governor and legislative leaders, it should be sufficient for members of the judicial branch. Also, the potential for misconduct is lessened by the extended term of 15 years.
The primary problem with the election of judges appears to be that the elections are historically contested so infrequently that voters are not attuned to the issues and judges are not prepared to run a campaign. There seems to be a kind of mutual disregard of the election process until there is a contested election. Then, everyone is caught unprepared.
To address this problem requires a more active role by the bar and the bench. My thought is this: what if the MSBA, in conjunction with the judiciary and the local bar associations undertook to conduct an annual survey regarding the performance of judges. Those involved with the legal process such as lawyers, clerks, litigants and others could be asked to anonymously evaluate judges on issues such as responsiveness, timeliness, fairness, promptness in issuing decisions, work ethic, legal reasoning, number of reversals on appeal, attitude, demeanor, community service, etc. To be sure surveys can be a mixed bag, especially if done incorrectly. Issues with costs, proper phrasing of questions and statistically significant samples and response rates would have to be addressed. Yet surveys are a common evaluation tool in a variety of settings; there should be no reason why judicial performance cannot be measured.
If properly obtained, survey information could serve a variety of purposes and address a number of concerns typically raised against elections. For example, the information could be used to disseminate to the voters to help better educate them about the sitting judge who is running for re-election. The information could be used to evaluate the relative merit of appointments made by a particular governor, which in turn could serve as an incentive to avoid unqualified political appointments. The information could also act as a deterrent to challengers in the circumstances where the sitting judge has amassed an impressive record of positive responses. Finally, such information could also be used, in rare cases, to determine whether the election process should be used to unseat a judge if he or she is consistently rated unacceptable. In such a case, the Bar could be involved with the election process by helping to nominate a qualified challenger and supporting that challenger. In this way, the election process could actually be used in a positive way to strengthen the judiciary.
An evaluation process could also lead to a more responsive judiciary. Judges would be provided with feedback and would be in a position to evaluate their own performance and make changes where necessary. A more responsive judiciary in turn would lead to increased respect for the judicial system. Judges themselves could also take a more proactive role in the community helping to educate the voters about the court system and judicial process, even when it is not an election year. Chief Judge Bell has practiced and preached such a proactive role for years.
The bottom line is that we are a nation governed by law and judges are the lynch pin in the rule of law. Confidence in the judicial system is necessary if our system of government is to survive. Accordingly, we all have a vested interest in making sure that our judiciary is above reproach. I believe the election process can be part of that; we simply need to approach it in a more proactive way.