The issue of how Maryland’s judges are appointed ― and how they attempt to keep their seats ― was a hot topic in the House Judiciary Committee this week, as it has been during previous General Assembly sessions.
As increasingly happens in Annapolis, race was often at the center of the debate.
Maryland’s chief judge, Mary Ellen Barbera, was among those testifying Wednesday that the judiciary has become far more diverse in recent years.
“I’m proud to note that our courts look so much more like the people they serve than they once did,” she told lawmakers.
But not everyone who spoke was convinced that progress has been sufficient ― or that justice in Maryland is color blind.
Voters appear to have taken notice recently: Three sitting Circuit Court judges, all white and all appointed by Gov. Lawrence J. Hogan Jr. (R), were defeated in elections last fall by Black challengers. A fourth white judge appointed by Hogan dropped out of his reelection race after finishing out of the money in the Democratic primary and was also replaced by a Black jurist.
“In certain parts of the state, if you’re going to put up a sitting judges’ slate [in an election] and all of those judges are white, you’ve got to know that some of those judges are going to lose,” observed Del. Wanika B. Fisher (D-Prince George’s).
The committee took testimony on two bills that would change judicial elections in Maryland ― elections that judges who have been appointed by the governor must stand for to earn lengthy terms in office. But the conversation essentially boiled down to the best way to diversify the bench in Maryland ― judicial appointments vs. wide-open judicial elections.
The governor appoints judges in the state, after reviewing recommendations from judicial screening panels that vet the applicants. How long judges serve and how they earn the right to stay on the bench varies from court to court.
For District Court, the lowest in the state, judges are nominated by the governor to 10-year terms and confirmed by the state Senate. They do not have to go before the voters after confirmation.
For the state’s highest court, the Court of Appeals, and the second highest court, the Court of Special Appeals, judges are nominated by the governor and confirmed by the Senate. In the next state election, they must stand for retention elections, in which the voters are asked whether the judges should keep their jobs. If they prevail, they serve 10-year terms.
For Circuit Court, judges are also appointed by the governor but don’t require Senate confirmation. And instead of running in elections where voters can give the judges a full term or not, the Circuit Court elections allow challengers to run against the incumbents, in elections that can become chaotic and confusing for voters.
Traditionally, sitting judges run together as a slate, and while that’s no guarantee of victory, they usually prevail. Last year’s results, which saw four Circuit Court judges denied full terms by the voters, were something of an outlier ― unless they’re the harbinger of a new trend.
“What happens if the governor gets it wrong?” asked Del. Debra M. Davis (D-Charles), who noted that voters in her majority-Black county last fall replaced a white judge with a Black woman.
Two similar bills before the Judiciary Committee would change the way judges get and attempt to keep their jobs. House Bill 447, from Del. Kathleen M. Dumais (D-Montgomery), calls for a constitutional amendment that would allow Circuit Court judges to be appointed with Senate confirmation and then run in retention elections, rather than in wide-open scrums. Under the provisions of the bill, the Circuit Court judges’ terms would be reduced from 15 years to 14 years, while appeals court judges’ terms would be increased to 14 years.
House Bill 35, from Del. Jon S. Cardin (D-Baltimore County), also envisions a constitutional amendment and calls for Circuit Court judges to be appointed and then run for 12-year terms in a retention election, while appeals court judges’ terms would be increased to 12 years.
Barbera and two other jurists, Montgomery County Circuit Court Judge Bibi M. Berry, who just won a full term in November after being appointed by Hogan in 2019, and Circuit Court Judge Keith A. Baynes, whose judicial district includes five Eastern Shore counties, testified in favor of both bills. They argued that there’s a danger in the wide-open election process for the Circuit Court, because judges who have been vetted by a screening panel could be ousted by challengers without the same credentials ― even some who have been rejected by a judicial nominating commission.
When Del. Daniel L. Cox (R-Frederick) observed that the challengers who were elected in November “all seemed eminently qualified,” Berry did not disagree, but said these types of elections are too risky.
“Therein lies the crux of the problem ― that we don’t know, can’t know” if challengers are qualified.
Berry also described campaigning as producing uncomfortable moments ― being asked by voters or at campaign forums what political party she belonged to and her opinions on hot-button issues like abortion, which aren’t really relevant to the job.
Both Cardin and Dumais said that the judicial screening commissions under Hogan and his most recent predecessors, Democrat and Republican, have been committed to diversifying the bench, and that the appointments reflect that commitment. But some lawmakers said they’re still not seeing the desired results.
“This has been a huge thing in Anne Arundel County, where we only recently just had an African-American woman appointed [to the bench],” said Del. J. Sandra Bartlett (D-Anne Arundel). “If you’re going to give white male candidates to the governor, then by golly, who is the governor going to appoint?”
Proponents of the Cardin and Dumais bills noted that changing Circuit Court races to retention elections still gives the voters a measure of say over the judiciary. And they argued that eliminating multicandidate judicial elections would take big money out of the process.
But Marylin Pierre, who has applied unsuccessfully for judgeships nine times and has twice challenged sitting Montgomery County judges in elections, said such a choice would be insufficient.
“Intrinsic in the right to vote is the right to vote for the candidate of your choice,” she said, arguing that she is as qualified as any of the appointed judges (Dumais praised Pierre as a passionate and energetic advocate, but stopped short of saying she deserved to be a judge).
Speaking to a panel of lawmakers who have been elected to their positions, Pierre added: “Ask yourself if you’d be here if you had to go through a screening process of this type.”