Two challengers are running against three incumbent judges in Baltimore City: lawyer Nicholas J. Del Pizzo, III and Maryland District Court Judge Emanuel Brown. These candidates present a formidable challenge to the sitting judges Gale E. Rasin, John C. Themelis, and Barry G. Williams.
In particular, danger is Judge Williams. Why are these sitting judges in danger? Judicial philosophy? Their record on the bench? No, these judges are in danger because they are alphabetically challenged. It would not be the first time in Maryland a sitting judge has arguably lost because of where their last name fell in the alphabet. In recent years, alphabetically challenged sitting Judges Alexander Wright Jr, Rodney C. Warren and Donna Hill Staton have lost close elections.
The only issue judges face of any interest to the general electorate is their position on sentencing. Anne Arundel County Circuit Court Judge Paul G. Goetzke won an election in Anne Arundel County on this issue. But arguably a campaign promise to “be tough on crime” or taking a position on the death penalty is evidence of bias that should disqualify a candidate from sitting in criminal cases. Supreme Court Justice John Paul Stevens told the American Bar Association exactly this in 1996. In Anne Arundel County, the public defenders’ office, I am told, routinely asks Judge Goetzke to recuse himself for this reason.
Judge Goetzke denies this motion. I agree with him (and disagree with Justice Stevens) that he should not be required to recuse himself in such cases. The Supreme Court has said judicial candidates have free-speech rights, as does any other candidate. Republican Party of Minnesota et al. v. White, 536 U.S. 765 (2002). But in her concurring opinion, Justice Sandra Day O’Connor said, “If the state has a problem with judicial impartiality, it is one the state brought upon itself by continuing the practice of popularly electing judges.” I think she was exactly right. I think Maryland is bringing upon themselves this system where the issues are where one sits alphabetically or issues that judicial candidates should not be debating.
I do not blame Mr. Del Pizzo or Judge Brown for running in this election in Baltimore. They are operating within the existing system. I will also admit that our firm has in the past supported a few judges running against the incumbent judges because we thought they would make an excellent judge (or because the qualified candidate was a friend). But just because the system may work in isolated instances, does not mean the system works for the greater good.
For years, Maryland’s Conference of Circuit Court Judges has lobbied the Maryland legislature to change the way they elect judges. Specifically, they have asked for a law that would institute “up-or-down” retention votes as opposed to competitive elections. I am not a big fan of the up or down vote because I think it is meaningless. I also think there should be a way to get off the bench judges who are incompetent or abusive to parties and/or attorneys and I think an “up-or-down” vote is tantamount to a lifetime appointment (which I also oppose).
Here is what I would propose: a governor-appointed commission of lawyers and judges who get together biannually (or maybe every five years) and vote not to keep the bottom 5% of judges. Jack Welch popularized this plan at General Electric. Each year, Welch would fire the bottom 10% of his managers. The Maryland Judiciary is not General Electric. But I think the same principle would hold true and would serve the purpose of not requiring judges to campaign but also make them at least somewhat accountable. Do I think my plan will come to fruition? No. I think we will continue to elect judges in Maryland for the next 100 years.