A Diverse Circuit Court Bench is Essential: Ideas on Achieving that Goal

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In her article for The Arundel Patriot, July 8, 2017, Claudia Barber, a 2016 judicial candidate, argues for diversity in our judiciary. I agree that it is imperative that the judiciary and other public institutions reflect the diversity within our community. The question is, what changes to law and policy might best achieve these ends? I suggest two.

Ms. Barber rightly asserts that the Governor has the opportunity to appoint members to the Anne Arundel County Judicial Nominating Commission who represent the wide diversity of Anne Arundel County citizens. By making diverse appointments to the judicial nominating commissions, the Governor increases the likelihood of a more diverse pool of candidates for his consideration for appointment to the bench. The Governor’s Executive Order creating circuit court nominating commissions provides that “Each Commission shall encourage qualified candidates, from a diversity of backgrounds, to apply for judicial appointment.” COMAR 01.01.2015.09D.3. The Governor can require the commissions to submit a report on their efforts to encourage candidates from diverse backgrounds to apply for a judicial appointment. He also can use the power of his Office to set the expectation that the local judicial nominating commissions consider a diverse group of applicants when making judicial recommendations. I would urge the Governor to revise the Executive Order to ensure greater diversity among the members of nominating committees, and to include more non-lawyers and more lawyers with various legal experiences. These steps – diverse membership on the commissions and accountability to the Governor for the commissions’ efforts to encourage qualified candidates from diverse backgrounds to apply and be considered – should result in increasing the diversity on the bench.

Second, I believe that retention judicial elections, and not the contested elections that Ms. Barber supports, would more likely increase diversity on the bench. In recent decades, two African American judges have served on the Circuit Court for Anne Arundel County, both of whom came to serve on the bench through the Anne Arundel County Judicial Nominating Commission and appointment by the Governor. The Honorable Clayton Greene, Jr., who now serves on the Court of Appeals, was a circuit court judge from November 1995 to January 2002. Later that year, the Honorable Rodney C. Warren was appointed to the Anne Arundel County Circuit Court. He was defeated in a contested election in 2004. Andrea F. Siegel “Circuit judge’s loss leaves an all-white circuit court bench” Baltimore Sun, November 4, 2004. Two other African American circuit court judges were defeated in contested elections in the decade before Judge Warren’s defeat. The Honorable Donna Hill Staton was defeated in 1996 after two years on the Howard County Circuit Court. Craig Timberg and Shanon D. Murray “Race debate follows first black Judge, Hill Staton, in apparent defeat” Baltimore Sun, November 7, 1996. In 2000 and 2002, the Honorable Alexander Wright, Jr., who now serves on the Court of Special Appeals, twice was defeated in contested elections after his gubernatorial appointments to the Baltimore County Circuit Court. Jonathan D. Rockoff and Stephanie Hanes “Judge’s loss spurs questions of racism” Baltimore Sun, November 7, 2002.

The prospect of losing a contested election may deter attorneys from applying for judicial positions. Before assuming the bench, an appointed judge must close his or her law practice, resign from a firm, or resign from a public or non-profit legal position, sometimes at significant personal cost. It is no simple task to resume a legal career after as long as two years, if defeated in a contested election. For these and other reasons, former Judge Dana Levitz and law professor Ephrain Siff have concluded that “[i]t is now generally conceded that judicial elections hinder diversity on the bench rather than promote it.” Levitz, Dana M. and Siff, Ephrain R. (2009) “The Selection and Election of Circuit Court Judges in Maryland: A Time for a Change,” University of Baltimore Law Forum, Vol. 40: No.1, Article 3, page 48. Available at: http://scholarworks.law.ubalt.edu/lf/vol40/iss1/3.

I join Ms. Barber and others in urging the local nominating commissions to encourage minority attorneys to apply for judgeships as required under the Governor’s Executive Order, and to give full consideration to forwarding the names of nominees who reflect the diversity of our community to the Governor. I urge the Governor to use the powers available to him to ensure diversity on the Anne Arundel Circuit Court. I also support a constitutional amendment to eliminate contested circuit court elections.

Catherine Shultz, a retired attorney, lives in Annapolis.

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