Remember Glendening? And You Still Want to Jettison Judicial Elections?

Democrat Attorney General Douglas Gansler has proposed eliminating the people’s right to vote for their county circuit judges in contested elections. He and other Democrats are strongly advocating a bill to change the Maryland Constitution to provide the citizens with only “retention” elections for circuit court judges. This week, Gansler recruited retired Supreme Court Justice Sandra Day O’Connor to lobby in Annapolis for this change.

The rallying cry is a U.S. Supreme Court case that ruled against a West Virginia Supreme Court judge who did not recuse himself in an appellate case involving a company that had made a significant contribution to his campaign. However, the Maryland Constitution already provides for “retention” only elections for our appellate bench.

Supporters of Gansler’s legislation point to recent circuit court elections where challengers were able to oust a sitting judge who had been appointed by the Governor. They bemoan the fact that judges should have to stand before the people and be judged at the ballot box based upon their qualifications, experience and talent. Why should judges have to raise campaign funds and be responsive to the “passions of the people”? Once appointed by the Governor, it is so far beneath them.

However, if one examines closely the surge of contested elections and successful challenges in the 1990s, one will find that the root of the problem was a nomination and selection process created by Governor Parris N. Glendening that was highly partisan.

One of Glendening’s first acts was an Executive Order that reconstituted the county trial courts nomination commissions so that the citizen members outnumbered the local attorneys appointed by the local bar associations. Glendening then packed the citizen members almost exclusively with Democrats.

An analysis of Glendening’s first five years of judicial appointments was compiled by Christopher West, then counsel to the Maryland Republican Party, and printed in a Baltimore Sun op-ed on April 4, 2000. Some highlights were:
          •      Of 144 judicial appointments, 92 percent were Democrats (as compared to a 58% statewide Democrat voter registration at the time).
          •      In counties with strong Republican voter registration (Allegany, Baltimore, Carroll, Cecil, Charles, Howard and Washington) Glendening's judicial appointments were 100% Democrat.
          •      After being elected to a second term in 1998, Glendening appointed Democrats to the judiciary at an even higher 97%  (58 out of 60 appointments).

A review of judicial appointments by Governors prior to Glendening will show that if a Governor has a non-partisan process that uses qualifications, experience and talent as the primary basis for selecting judges, successful electoral challenges of their appointees are exceedingly rare.

But if their appointments are based upon an attorney's allegiance to the Democrat Party, as they were with Glendening, it feeds into a general public dissatisfaction that results in successful challenges at the ballot box.

The people's right to vote should not be abrogated in Maryland. The right to vote in a contested circuit court election is the leverage retained by the public to protect the judiciary from abuses in the appointment process and guard against an overtly partisan Governor.