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President's Message
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What is it that makes us trust our judges?
Their independence in office and
manner of appointment.

-- John Marshall

This quote is noteworthy given the fact that it predates John Marshall’s appointment as Chief Justice of the Supreme Court by thirteen years.  Marshall was commenting in his capacity as a delegate to the Virginia convention tasked in 1788 to consider ratification of the U.S. Constitution.  There was, at that time, considerable skepticism in the Commonwealth regarding the wisdom of creating courts with federal jurisdiction. 

After declining an appointment to the Supreme Court in 1798, Marshall was eventually appointed Chief Justice in 1801 by President John Adams.  He would go on to serve until 1835 during the administrations of six presidents:  Adams, Jefferson, Madison, Monroe, J.Q. Adams and Jackson.  Marshall was the longest serving Chief Justice and the last born in colonial America.  During his tenure, he authored the opinion in Marbury v. Madison and the majority opinion in McCulloch v. Maryland.

Marshall’s view on the source of trust in our judges is as accurate today as it was 230 years ago.  The independence of our judiciary is, of course, a long-settled issue.  Less settled, especially in Maryland, is the “manner of appointment” that Marshall opined to be as significant as judicial independence. 

As of the drafting of this piece, our Legislature is considering two separate bills (HB0513 and HB0607) which would amend provisions of the Maryland Constitution regarding the manner of appointment of judges.  The first would replace the current practice of contested circuit court elections with a retention election similar to those utilized for appellate judges.  The second would authorize contested elections only in certain circumstances (such as failure to achieve a targeted percentage of ratification votes in the Senate).

While progress in the Legislature on the issue of contested elections during the current session will be a welcome development, it will not affect the current situation in our State.  At the moment, there are multiple contested judicial elections including a contested election in Montgomery County, the fourth such contest since 2002.  In addition to Montgomery County, there are contested judicial elections in Harford County and Anne Arundel County.

None of the challengers in the 2002, 2004 or 2014 elections in Montgomery County were successful.  In fact, no challenger in a judicial election has ever succeeded in this County.  That has not been the case in other jurisdictions.  Recent elections saw successful challengers in both Frederick County and Prince George’s County. 

Since 2002, the BAMC has continuously endorsed the Sitting Judge Principle.  It will continue to do so.  The Sitting Judge Principle is rooted in the exceedingly rigorous vetting process to which each judicial applicant must submit prior to securing an appointment.  Our judicial selections process assures the citizens of our County that the individuals appointed to our courts possess the intellect, experience and judicial temperament demanded by the job.

The current protocol for trial court appointments dates to 1970 when Governor Marvin Mandel issued a Gubernatorial Executive Order which created judicial nominating commissions.  The Trial Courts Judicial Nominating Commission is responsible for identifying for the Governor those attorneys who are “most distinguished for integrity, wisdom and sound legal knowledge.”  Every subsequent governor, both Democrat and Republican, has continued the terms of the executive order.

Applicants for judicial appointments begin the process with a lengthy and comprehensive application which inquires about education, legal experience and personal information.  The completed applications are distributed to more than a dozen diverse bar associations including our own bar association and the specialty bars.  Each applicant can submit to interviews with those bar associations who, in turn, make recommendations to the Judicial Nominating Commission.  The BAMC has significant input in the judicial application process.  In addition to review of the applications and personal interviews by our Judicial Selections Committee, we conduct an online referendum of our membership.

The Judicial Nominating Commission conducts its own interviews of the candidates and considers the input of the other bars which conduct interviews.  Once the process has been completed, a list of qualified candidates is submitted to the Governor for consideration.  The applicants who are recommended are each interviewed personally by the Governor prior to the appointments being made. 

Unfortunately, the Maryland Constitution permits individuals who decline to participate in the vetting process or who are unsuccessful in doing so to simply pay a nominal filing fee and run against the appointed, sitting circuit court judges.  The most common arguments in support of the current system are that the judicial nominating process is a “beauty pageant” and does not sufficiently promote diversity on the bench. 

The beauty pageant argument is, of course, based on an enormous fallacy:  that the judicial nominating process should be optional with our judges selected by the ultimate beauty contest -- a general election.  I have worked the polls in each contested election since 2002 and can assure you that the public has essentially no knowledge of and little interest in the judicial elections.  Election campaigns simply cannot adequately replace the rigor of the judicial nominating process.

A diverse bench is, without question, a valid and worthy concern.  But we don’t need contested elections to accomplish this goal.  One need only consider the trial court appointments made by Governor Hogan in Montgomery County since the 2016 election, seven on the circuit court and seven on the District Court.  These most recently appointed judges were chosen from the very best of our profession.  They are not only incredibly talented and experienced but also represent the diversity for which we strive.  As a result of these appointments, we have courts that better reflect the community that they serve.

A final point concerns the judicial independence to which John Marshall referred more than two centuries ago.  How can our judges be truly and completely independent when they must submit themselves to a political process such as contested judicial elections?  True independence requires that they be permitted to perform their judicial functions without regard to the possible unpopularity of any particular ruling. 

Our Association has continuously endorsed the Sitting Judge Principle since 2002.  It has done so because the current judicial selections process works.  Due in no small part to the participation of the BAMC, it insures the appointment of the most qualified candidates and has resulted in a diverse and exceedingly talented bench.  For all of these reasons, the BAMC will continue to vigorously and enthusiastically support and endorse the Sitting Judge Principle.

Jim Mood