The Politics of Picking Judges

originally published June 2, 2008

To those outside the legal community, the recent flap in Anne Arundel County over judicial nominations has been illuminating. It reveals a process for picking judges that drips with politics, even when the positions are non-elected. But for lawyers like me, the real story is not that this stuff happens, but that someone exposed it.

For those who did not follow the controversy, it goes like this: The Anne Arundel Judicial Nominating Commission sent a list of candidates they found to be qualified for three vacant judgeships to Governor Martin O’Malley. O’Malley responded by demanding more names to reach a mandatory quota that he imposed only after he got the first list. That list had left off the name of Thomas V. Miller III, son of the most powerful man in the State Senate, Thomas “Mike” Miller. After some intensive lobbying of commission members by political types, Miller was added to the list as a “qualified” candidate.

O’Malley, ever the impatient one, clearly orchestrated Miller’s nomination. This is not unusual behavior for a governor. (Did anyone notice that Miller III was appointed a parole commissioner only four years out of law school by newly-elected governor Parris Glendening? Seems like new democratic governors feel a need to pay early favors to the Senate President.) O’Malley just overtly did what is covertly done all the time, probably expecting no one to complain.

The Baltimore Sun, weighing in on the issue, chastised O’Malley for making a new quota, as though without it citizens would get “the most-qualified candidates, not those most closely tied or related to powerful officials.” The Sun should know full well the dirty little secret of the Maryland bar, that judicial appointments are extremely political, whoever is governor. “Political” can take various forms, whether it is to please a constituency (women, minorities, etc.) or to confer a personal or political favor. Governors have prized judgeships from time immemorial as a way to cultivate or reward political loyalty.

The Sun would have us think that judicial nominating commissions provide the “most-qualified” candidates, even as it acknowledges that “many political cronies—too many to list here—have been nominated and appointed to judgeships.” Now how did that happen? Judicial nominating commissions give governors the cover they need to appoint who they want by pinning the label “qualified” on them.

What makes a person the “most-qualified” is an extremely subjective issue, even for those commission members who try their best to keep politics out of it. A person can make the “list” of nominations one year and not the next and vice versa, though nothing has changed on his or her resume. Take one Catherine Curran “Katie” O’Malley, who missed the cut one year but made the list (and was appointed) not long afterward. What changed in the interim? Her husband was elected mayor of Baltimore.

This doesn’t mean that she—or Miller—was or was not “qualified.” It just means that getting on the list is often about something other than qualifications, depending upon the nominating commission and the governor.

There are many illustrations of how the process really works to discuss at another time. But for now, the real story is that three members of Anne Arundel’s Judicial Nominating Commission stood up to O’Malley. They exposed the fiction that commissions serve up the “most-qualified” when the governor has pre-selected a candidate. As a former colleague of mine said, getting a hard-working, competent judge of integrity “is merely an accidental by-product of the system.”

To have three members of a commission—who are largely appointed by governors--actually resign over what happened strikes me as unique. I called Paula J. Peters, the member of the Anne Arundel Judicial Nominating Commission who had served the longest before resigning. She told me that her experience with the Miller nomination was the “worst” interference she had ever seen. While it was normal to discuss candidates with other lawyers for their views, she had never been lobbied by politicians before. And she had never been asked to nominate a candidate when her commission had just rejected him. So she quit, publicly.

Peters is not giving up a paid position. But she had served on the nominating commission for 20 years, and when she said she was “sad” that her service ended on this note, I could hear it in her voice. She will get no public recognition, neither for her service nor her resignation. O’Malley will move on and eventually do what he wants to do.

But Peters—as well as fellow commissioners Eileen E. Powers and Marysabel Rodriguez-Nanney—deserve a great deal of credit. It is never easy, never pleasant to rock the boat, and there are sure to be consequences for them of some kind. But they have allowed the public a small glimpse into the ugly side of the process that makes our judges, one that the legal community and our politicians would prefer remain hidden.

As for O’Malley, considering his mission to reform the criminal justice system as Baltimore’s mayor and Maryland’s governor, it is particularly ironic that he is making the same political use of judgeships as any other governor.

Take a recent O’Malley appointment that has to be a strong candidate for Most Lightweight Appointment Ever. This judge began as a prosecutor, the type of amiable but immature young man who would talk about going into trial to “kick butt” only to have his butt kicked instead. There was always some excuse—the jury, the police, etc. which, together with his work habits, kept him from ever improving. He also was an overt homophobe, referring to gays as “fudge-packers” and offering the view at the height of the AIDS crisis that this was “God’s way of getting rid of homosexuals.”

After nine ineffective years and a failure to advance he left prosecution, kicked around at his daddy’s firm, and eventually landed as an assistant public defender, where his talents were apparently more suited to punching holes in cases than to building them. More significantly, his wife became very friendly with Katie O’Malley, and he made a connection with fellow assistant public defender Lisa Gladden, who happens to be a state senator from Baltimore. And his brother happened to give $2500 to the Friends of Lisa Gladden.

Some think it was the Katie O’Malley relationship and others think it was the Gladden-to-Martin O’Malley connection that got him nominated and appointed. But to call his record “distinguished,” and assure citizens that they could expect “equal and exact justice” from him (gay citizens, watch out) as O’Malleys’ press release claimed, is laughable. If O’Malley is serious about reforming the criminal justice system, he can start with getting the best people on the bench.