October 29, 2010

Governors’ judicial appointments have lasting impact

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By Megan Poinski
Megan@MarylandReporter.com

With terms ranging from 10 to 15 years – and then the potential of staying on the bench for several terms after that – the judges a governor selects could make a lasting impression on the state and its laws.

For all of the state’s courts, a nominating commission vets people who apply to be judges. The top picks are presented to the governor, who does his own investigation and makes his selection. For circuit court judges, the governor’s selection is checked by putting those judges — plus other attorneys interested in the position — on the ballot after at least a year of service for the people to vote on.

Statistics kept by Baltimore attorney Chris West have shown that the state’s last two Democratic governors have overwhelmingly named Democrats to the bench. Some candidates — like Alison Asti, a Republican in Anne Arundel County — have said the process is biased and have challenged the sitting judges.

This year, as others had done in the past, Attorney General Douglas Gansler proposed a bill to the General Assembly that would get rid of the Circuit Court elections altogether. But both Republicans and black legislators again opposed a change that would leave so much power in the hands of the governor.

As it is now, the process is structured to be intensive, nonpartisan, and fair. The lengthy application to be a judge, approved more than a decade ago, asks applicants 38 essay questions to probe their legal experience, potential demeanor on the bench, and character. Candidates are scrutinized through character references and interviews, which Unitus said are often performed by the governor’s office in addition to the nominating committee, according to Deborah Unitus in the administrative office of the courts.

And then, the people at large have a chance to vote in what amounts to a referendum on Circuit Court judges’ performance on the bench after their terms begin.

Political concerns

However, some people have said that politics seep into the selection process when the potential judges’ names get to the governor’s desk.

“If the judiciary is perceived by the public as the province of the two political parties, it is extremely detrimental,” said West, who watches judicial appointments closely.

West has followed judicial nominations since the 1990s, when an attorney seeking a spot spoke up at a candidates’ forum. The attorney, running against a recently appointed judge, said that he had applied and made the short list of potential judges – but then-Gov. Parris Glendening, a Democrat, would not name him to the bench because he was a Republican.

West, also a Republican, discussed the issue with some other members of the judicial community and found there might be something to that argument. From then on, West has kept track of the names and political affiliations of all of the judges appointed by Glendening, former Gov. Bob Ehrlich, and Gov. Martin O’Malley.

West uses Board of Election voter registration records to determine judges’ partisan affiliations. He said the statistics show partisan bias from Democratic governors when they appoint people to the bench.

According to his statistics:

·         Glendening appointed 144 judges: 96% Democrats and 4% Republicans.

·         Ehrlich, a Republican, appointed 72 judges: 52% Republicans and 48% Democrats.

·         O’Malley has so far appointed about 70 judges: 95% Democrats and 5% Republicans.

“This was shocking to me,” West said. “I had always made the assumption that the governor always picked the best candidate.”

Since West has started keeping his statistics, he said he has heard some anecdotal stories about the way nominations have played out and people close to the governor opposing nominees based on their political parties. There is no way to prove whether there is any truth behind these stories, West said, but the fact that they are circulating raises potential to taint the public perception of the impartial bench. Especially since most judges very rarely hear cases where their political beliefs come into play when making their rulings, he said.

“The problem here is the governor,” West said.

O’Malley spokeswoman Christine Hansen said that the governor makes judicial selections based on their qualifications and backgrounds. He has paid keen attention to diversifying the bench also. Hansen said O’Malley has appointed more women judges than Ehrlich.

“It’s like any job interview process,” she said.

Where are the politics?

Members of judicial nominating commissions about how the process works say that politics are absent from their process – as well as the governor’s final decision.

Judicial nominating commissions are set up by executive orders from the sitting governor. Unitus said that they have followed the same basic format: a combination of attorneys and laypeople named to the commission by the governor and the bar association.

Laura Robinson, a Republican attorney who served on the judicial nominating commission in Anne Arundel County during Ehrlich’s administration, said that the political affiliations of potential judges never came to her mind. Robinson is now campaigning for the sitting Anne Arundel County Circuit Court judges.

“We all practice in front of these judges,” Robinson said. “I don’t care if you’re a Republican or a Democrat. I just want a fair trial.”

One question that the lengthy judicial application does not ask is political affiliation. Attorney Rudolf Carrico Jr., the current chairman of the Charles County judicial nominating commission, also served on the commission under Glendening’s tenure in office. He said that politics never come up in discussions – and that both commissions he served on likely suggested Republicans as potential judges for the governors to select.

Both Robinson and Carrico said that a potential judge’s experience and demeanor are the most important aspects to consider when looking at applications. Carrico said it can be an extremely time-consuming process to go over all of the information submitted by judicial nominees. Judicial applicants also include some of their most important cases – which commission members said says a lot about their demeanor and philosophy. Robinson said that commission members talk with numerous references – both those recommended by the nominees, but also to judges, attorneys who have been opposing counsel, and other people in the judicial committee.

Neither Carrico and Robinson could say if they had seen political affiliations enter into judicial selections.

“In terms of appointment, I think that in the current system, partisanship is very much checked,” Robinson said.

The judges that Robinson is supporting are Democrats, but she said they are both extremely qualified. Judge Ronald Jarashow had been on the short list submitted to Ehrlich by Robinson’s commission – though not appointed until O’Malley became governor – she said, so she knows that he should stay on the bench. Judge Laura Kiessling did not apply to be a judge while Robinson was serving on the commission, but Robinson said she is sure that she would be qualified.

Contested elections

Some attorneys hoping to become judges have felt disenfranchised by the nominating process. Alison Asti, a Republican who is running against the sitting Anne Arundel County judges, said that she didn’t even apply to become a judge when Jarashow and Kiessling’s positions were vacant.

“I was aware how biased and partisan the nominating commission was,” Asti said.

Attorneys supporting the sitting judges question Asti’s qualifications for the bench. While she has long legal experience, including 17 years as the legal counsel to the Maryland Stadium Authority, she has not spent much time trying cases. Additionally, many election observers are pointing out that Asti has only been a Republican for about a year. Prior to that, she was a Democrat.

Asti appears on the ballot in Anne Arundel County with Jarashow and Kiessling. If she finishes in the top two, she will begin a 15-year term on the Circuit Court bench.

The current process, Asti said, is flawed and political. The governor has too much power to make decisions, and Asti said O’Malley has not been fair in the appointments he has made. She specifically cited the 2008 selection of Thomas V. Miller III – son of longtime Maryland Senate President Mike Miller – to be a District Court judge in Anne Arundel County. Two members of the judicial nominating commission resigned after Miller’s appointment.

If Asti is elected, she will be among few judges who were able to be elected to the bench. In 2004, Anne Arundel County Circuit Court Judges Paul Harris and Paul Goetzke defeated appointed judges David Bruce and Rodney Warren. A Gonzales Research poll of likely voters taken in mid-October put Asti ahead of Jarashow and Kiessling. However, the numbers were not conclusive. Asti got 30% support, Kiessling got 29%, Jarashow 24%, with a 5-point margin of error. A full 44% were undecided and supported no candidates at the time of the poll.

Proponents of nominating commissions said judicial elections cut out the intense scrutiny and vetting that the judicial nominating commission is charged to do. In order to run for a judicial seat, a candidate just has to meet the minimum qualifications specified in the Maryland Constitution: a U.S. citizen who has lived in Maryland for the five years prior to serving, a member of the Maryland Bar, a registered voter, at least 30 years old, and a resident of the area where he and she would serve for at least six months. No questionnaires, interviews, or case history are considered by anyone except the voters.

Robinson said that the vetting process is important; the masses cannot always determine who will be the best judge based on campaign promises.

“And in terms of elections, partisanship then can play a very large role,” she said.