Delegate Kathleen Dumais

Democrat, Maryland House of Delegates District 15

Md.’s method for choosing judges is wrong

The Post recently opined that lawmakers should “take a hard look at how judges are selected” [“A higher bar for Md. judges,” editorial, June 19]. Indeed, it is time Maryland abandon contested elections for circuit court judges and use the same merit system in place for our appellate court judges, as historically endorsed by The Post.

The governor would appoint circuit court judges from a list submitted by a broad-based, representative nominating commission. The judicial appointee would then be subject to confirmation by the state Senate, followed by a retention election at the next general election after appointment and then stand every 14 years for a retention election on his or her record. The esteemed Commission on the Future of Maryland Courts recommended this process for circuit court judges in 1996.

The primary difference between Maryland’s current process and the process recommended above is that today, after going through the rigorous appointment process, circuit court judges can be challenged in the election by individuals who, in most instances, have not gone through the vetting process. Instead they simply pay a $50 filing fee to appear on the ballot.

Contested judicial elections are costly and often flawed with misleading advertising by candidates and advocacy groups. For the most part, voters are left with little substantive information with which to evaluate candidates for judicial races. The ballot doesn’t indicate whether the individual listed is a sitting member of the bench.

The Post criticized Montgomery County’s legal community for “closing ranks” around Judge Audrey Creighton to “help her win election to a 15-year term” even though questions about her alleged behavior were “troubling.” The legal community actually supported the “sitting judge principle.” As a practicing family law attorney who routinely represents clients in the circuit court, I also support this principle. For more than 40 years, it has ensured that Montgomery County has only the most qualified judges on the bench.

Under the sitting judge principle, the governor first appoints circuit court judges only after these men and women have subjected themselves to rigorous scrutiny and examination by a 13-member nominating commission established by executive order of the governor. Each candidate completes a voluminous, comprehensive application and submits additional materials as requested.

The commission then obtains other information from the candidate’s personal references, the Attorney Grievance Commission, judges, criminal justice agencies and other sources. Further, the commission places notices in at least one newspaper identifying the applicants and inviting written and signed comments. Once all of the information on a candidate has been compiled, at least 10 members of the commission must interview the candidate.

Each candidate is also vetted by a number of bar associations, each of which submits its recommendations to the commission and the governor.

The process is not perfect, and improvements could be made. But the sitting judge principle is not a sinister scheme. It represents solid, rational policy.

In the specific case of Creighton, now retired, the Commission on Judicial Disabilities was as transparent as it could be. When an agency investigates disciplinary, child abuse, employment, criminal, grievance, disability and other such matters, it must balance due process and privacy rights of the accused and victims or affected third parties. The right question is whether the process is fair, and the test is whether the process worked.

The most important and long overdue change in Maryland would be to select circuit court judges by merit instead of by election. This would protect our community and guarantee that our judges have the highest quality of character, integrity, judicial temperament and education.

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