The Case for the Commission Process
BY ROBERT C. BONSIB, ESQ. AND EREK L. BARRON, ESQ.
For nearly five decades, Maryland has wrestled with a recurring debate: should circuit court judges be selected through contested elections, or through gubernatorial appointments from a slate of candidates vetted by trial courts judicial nominating commissions (the commission)?
In 1968, voters rejected a proposed new state constitution in part because it would have eliminated their ability to elect circuit court judges. The shadow of that vote has fallen across every subsequent attempt at reform. Bills come and go each session, but the result is the same.
We have served the Maryland legal community from different vantage points and have been involved in the judicial selection process—one of us as a longtime member of the Prince George’s County trial courts judicial nominating commission, the other as a former legislator. From those two perspectives, looking at the same question, we have reached the same conclusion: the commission process, although imperfect, is far more likely than contested elections to produce qualified, ethical, and capable circuit court judges.
The persistence of contested elections does not protect democracy in any meaningful sense. It protects a habit.
The Constitutional Standard
Article IV of the Maryland Constitution provides that judges of the Maryland courts shall be selected from those “who have been admitted to practice in this State and who are most distinguished for integrity, wisdom and sound legal knowledge.” That is the benchmark against which any selection method must be measured. It is not a benchmark that a 30-second campaign advertisement, a lawn sign, or a place near the top of a ballot can satisfy.
Governor Wes Moore’s Executive Order of January 1, 2023, reaffirms that “the interests of the people in the state will be best served by the continued existence of nonpartisan and unbiased Judicial Nominating Commissions composed of outstanding citizens of diverse backgrounds and experience from across the state.” Each trial courts judicial nominating commission is directed to consider an applicant’s “integrity, maturity, temperament, diligence, legal knowledge, intellectual ability, professional experience, community service, and any other qualifications that the Commission deems important,” as well as “the importance of having a diverse and impartial judiciary.” The commission’s charge is to recommend to the governor “those candidates who are legally and professionally qualified.” The question, then, is not whether the constitutional standard is the right one. The question is which selection process is more likely to honor it.
What the Commission process actually does
Public debate over judicial selection often proceeds without much understanding of what trial courts judicial nominating commissions actually do. From more than two decades of service on the Prince George’s County Commission, one of us can describe the work directly.
Applicants complete a detailed, confidential personal data questionnaire. Through that questionnaire, applicants may request that the Administrative Office of the Courts share their materials with up to 13 specialty bar associations. In practice, applicants typically also present themselves for additional interviews with local bar associations and with judicial selection committees. The commission, in turn, regularly receives reports and recommendations from those bar association committees. Letters of recommendation come in from members of the bar, the judiciary, and others who know the applicant personally and professionally.
Commission members are expected to do more than read a file. They contact the references the applicant has supplied and—perhaps more importantly—reach out to others who may have firsthand knowledge of the applicant’s reputation. By the time a candidate appears before the commission, members have a broad spectrum of information about that candidate’s qualifications, temperament, and character. The candidate then has 20 to 30 minutes to give a presentation and respond to questions.
When negative information surfaces from references, the questionnaire, or outside sources, the commission's practice has been to confront the applicant with that information and give the applicant a fair opportunity to respond and explain. Negative information is not weighed against a candidate who has not had the chance to address it. That practice reflects a fundamental commitment to fairness and yields a more accurate picture.
By the conclusion of the process, the commission’s information base on each applicant far exceeds anything available to the typical voter in a contested election. That gap is not a marginal difference. It is the difference between informed judgment and surface impression.
What the Election Process Cannot Do
Contested elections cannot replicate any meaningful portion of the vetting just described. With rare exceptions, voters do not focus on judicial elections. They lack the time, the resources, and (through no fault of their own) the access to information needed to evaluate the qualifications and personal characteristics of judicial candidates. Bar association ratings exist, but their reach into the general electorate is limited. The candidate with the more polished campaign, the more familiar surname, or the more favorable ballot position carries structural advantages that have nothing to do with integrity, wisdom, or sound legal knowledge.
Then there is the problem of “retention” elections, which some reform proposals would substitute for contested elections after appointment. In our view, retention elections are largely theatrical. The judges running in them do not campaign. They have no opponents. No judge in a retention election in Maryland has ever come close to losing. To describe such elections as a meaningful check on appointive authority is generous; to treat them as the democratic equivalent of contested elections is not honest.
The more candid statement is that the contested election process introduces randomness into a decision that the Maryland Constitution requires to be made based on demonstrated qualifications.
The chilling effect on the bar
One of the strongest practical arguments against contested judicial elections is that they deter qualified attorneys from applying for the bench in the first place.
Consider the position of an experienced lawyer whose practice has been built over decades. Suppose that the lawyer is recommended by the commission, nominated by the governor, and sworn in. Under the current system, the lawyer must then wind down their private practice, take the bench, and run in a contested election. If the lawyer loses—perhaps because of name recognition, perhaps because of ballot position, perhaps because of an unrelated political wave—the lawyer must rebuild a practice from scratch.
Commission members are human beings making judgments under conditions of imperfect information. Governors, like all elected officials, bring their own political and other considerations.
This is not a hypothetical concern. It is a concrete reason that some of the most qualified lawyers in Maryland never apply. The risk-adjusted return on a judicial appointment is, for many, simply too low. The commission process tends to attract the candidates the constitutional standard envisions. The contested election process tends to scare them off.
“Sitting Judge” Tickets and Other Distortions
In larger jurisdictions, contested elections have produced their own peculiar pathologies. Because every newly appointed circuit court judge must run, and because turnover is regular, “sitting judge” tickets have become standard practice. Whichever judge’s name appears closest to the end of the alphabet is the most exposed. The mechanics of the ballot, not the merits of the bench, drive outcomes in races that voters often cannot meaningfully evaluate.
Contested elections do, on occasion, produce excellent judges. Some of those who emerge as the “best politicians” have served admirably on the bench. But the more common pattern is less reassuring. Contested elections have unseated qualified sitting judges in favor of less qualified challengers. They have elevated candidates who would not have survived peer review. They have produced their share of trainwrecks. The commission process may also produce failures, but at a far smaller percentage and against a far higher qualification floor.
Perfection and the good
Neither of us claims that the commission process is perfect. Commission members are human beings making judgments under conditions of imperfect information. Governors, like all elected officials, bring their own political and other considerations. There will be appointments, and there have been appointments that proved disappointing.
But “perfection is the enemy of the good” applies here with unusual force. Holding the commission process to a standard of perfection while excusing contested elections for outcomes that actively undermine the constitutional standard makes no sense. The right comparison is between two flawed but
unequal processes. By any honest measure, including the breadth of vetting, the quality of the information available to decision-makers, the seriousness of the deliberation, and the willingness to confront unfavorable evidence about a candidate, the commission process performs better.
A word on what comes next
The political math on this question has not shifted much in 49 years, and we do not pretend that another article will move it on its own. But the bar has a particular role to play. Lawyers and judges understand, in a way few outside the profession do, what the constitutional standard actually requires of a trial judge and how much of that is invisible to the voting public. We can describe the commission process as we have actually seen it work. We can be candid about what contested elections produce, and at what cost. Whatever shape future reform takes, the case is clear: a process that vets candidates against the standard set by the Maryland Constitution is the most likely to satisfy that standard. The commission process is that process. It is, in the words of the old aphorism, very good. We should stop letting the search for perfection prevent us from saying so.
Robert C. Bonsib has served on the Prince George’s County trial courts judicial nominating commission for more than 20 years.
Erek
L. Barron is a former U.S. Attorney and former Member of the House of Delegates.