Lessons from a bid for the bench

Baltimore Sun - - COMMENTARY - By Todd Oppenheim Todd Oppenheim is an as­sis­tant public de­fender in Bal­ti­more City. This piece re­flects his per­sonal views. His email is mr­tod­dhar­ris@hot­mail.com; Twit­ter: @Op­p4Jus­tice.

As I waited for my ju­di­cial in­ter­view in a fancy law firm lobby with a panoramic view, the un­demo­cratic nature of the process to be­come a Bal­ti­more judge hit me. I thought back to a Sun­day morn­ing in spring be­fore the pri­mary when I ea­gerly sat in the Rev. Reg­gie Thomas’ of­fice beneath the sanc­tu­ary of Greater Geth­se­mane Church in the Berea com­mu­nity of East Bal­ti­more. I was run­ning for judge, and he and some in his largely AfricanAmer­i­can con­gre­ga­tion wanted to learn what I was about: me, a lanky white public de­fender raised in the D.C. sub­urbs as a Jew.

Un­for­tu­nately, the ju­di­cial ap­point­ment process is a far cry from a frank dis­cus­sion in a Bap­tist church. To be­come a Mary­land judge, one has to play a game that mixes pol­i­tics, nepo­tism and com­pla­cency to a nau­se­at­ing de­gree. I was ul­ti­mately un­suc­cess­ful, but I want to share my ex­pe­ri­ences.

First, here is how Mary­land judges reach the bench. Each county and Bal­ti­more City has two kinds of trial courts: District Courts that han­dle mi­nor mat­ters and Cir­cuit Courts that over­see jury trials. Judges are ini­tially ap­pointed by the gov­er­nor when a va­cancy arises, but new Cir­cuit Court judges must stand for elec­tion at their first op­por­tu­nity af­ter ap­point­ment. At­tor­neys can chal­lenge their po­si­tions in the elec­tions, as I did, but they rarely do — out of fear of reprisal. Once elected, a Cir­cuit Court judge serves 15 years. The idea is to put judges through the cru­cible of an elec­tion but not have them con­stantly run­ning. It’s the ap­point­ment part that needs fix­ing.

All I heard from my op­po­nents dur­ing the cam­paign, the six “sit­ting judges” I was run­ning against, was how they were su­pe­rior can­di­dates due to their “vet­ting.” This vet­ting process was made out to be as strict as Don­ald Trump’s im­mi­gra­tion pol­icy. But the ar­gu­ment is trans­par­ent. Just look at the prob­lems the Cir­cuit Court bench has with poor rul­ings on ba­sic le­gal is­sues, lack of ci­vil­ity to lit­i­gants and docket in­ef­fi­ciency to see that the vet­ting process has cracks in the fa­cade.

Af­ter I lost in the pri­mary, three new Cir­cuit Court open­ings came up, so I ap­plied. A prospec­tive judge sub­mits an ap­pli­ca­tion to the city’s Ju­di­cial Nom­i­nat­ing Com­mis­sion, a group of 10 at­tor­neys and three non­lawyers, all po­lit­i­cal ap­pointees, who don’t have to live in Bal­ti­more. Prior to a fi­nal in­ter­view with the com­mis­sion, an ap­pli­cant can meet with 13 bar as­so­ci­a­tions com­posed en­tirely of at­tor­neys, many of whom don’t live in Bal­ti­more or reg­u­larly work in our city’s Cir­cuit Court. The as­so­ci­a­tions re­port their “find­ings” to the com­mis­sion. Fi­nally, the com­mis­sion sub­mits rec­om­men­da­tions to the gov­er­nor. The eval­u­a­tion pro­cesses are un­clear and pri­vate.

It’s no sur­prise that my can­di­dacy and ap­pli­ca­tion were af­fronts to an in­su­lar lawyer net­work to which I, a ca­reer at­tor­ney in the state’s public de­fender’s of­fice, do not be­long. It didn’t mat­ter that my calls for sys­temic re­form drew an elec­toral fan base in of­ten ig­nored po­lit­i­cal groups like the (Bal­ti­more) Repub­li­cans, Greens or Ujima Peo­ple’s Progress Party. The bar as­so­ci­a­tions didn’t care that ac­tivists, pro­fes­sors, so­cial jus­tice pro­po­nents and most lo­cal farm­ers’ mar­ket shop­pers backed my can­di­dacy.

Typ­i­cal prospec­tive judges make no waves. Most are av­er­age at­tor­neys who of­ten float among dif­fer­ent le­gal jobs to gain ex­pe­ri­ence in con­trast­ing prac­tice ar­eas with­out re­ally mak­ing a sig­nif­i­cant dif­fer­ence. That “ex­pe­ri­ence” some­how lifts an ap­pli­cant to a higher level with­out re­veal­ing how he or she would ac­tu­ally ap­ply the law. To get a leg up, fu­ture po­ten­tial judges join bar as­so­ci­a­tions and serve on the very com­mit­tees that eval­u­ate ap­pli­cants. Some sit on mul­ti­ple as­so­ci­a­tions’ com­mit­tees. A do­na­tion here, a fa­vor there, and your name could be be­fore the gov­er­nor.

At the Mary­land State Bar As­so­ci­a­tion’s in­ter­view, I had to steer the dis­cus­sion away from a de­bate on elect­ing judges (they were against). At an­other meet­ing, an at­tor­ney wanted to know whether I would later run as a sit­ting judge if rec­om­mended. Com­pared with “roll your sleeves up” meet­ings like the one I had with West Bal­ti­more’s Up­ton Neigh­bor­hoods As­so­ci­a­tion, the starched-col­lar bar as­so­ci­a­tions were self­cen­tered and out of touch. The Up­ton group’s ques­tions re­flected more realities of court than the at­tor­neys’ did.

Then there were the “find­ings.” One bar as­so­ci­a­tion felt that my role as a public de­fender “would make it dif­fi­cult … to adopt the dis­pas­sion­ate, neu­tral de­meanor of a judge.” They don’t un­der­stand that most pro­fes­sions de­mand pas­sion and en­thu­si­asm or you risk sac­ri­fic­ing your best ef­forts.

Fact is, judges have dis­cre­tion and can help elim­i­nate dis­par­i­ties cast upon poor peo­ple and African-Amer­i­cans. For ex­am­ple, I’ve ar­gued that what judges are do­ing in set­ting un­reach­able bails is un­con­sti­tu­tional. Even the Mary­land at­tor­ney gen­eral agrees. Yet th­ese ideas were ridiculed by bar as­so­ci­a­tion at­tor­neys. Dif­fi­cult dis­cus­sions in pro­gres­sive cafes and chal­leng­ing con­ver­sa­tions in cor­ner bar­ber­shops bet­ter show who de­serves to be a Bal­ti­more judge than any in­ter­view. To con­quer th­ese fo­rums is to un­der­stand the peo­ple who ap­pear in court as plain­tiffs, de­fen­dants, vic­tims, wit­nesses or ju­rors.

For a fairer process, we must in­clude non­lawyers and end the se­crecy in se­lect­ing judges be­cause the cruel irony be­hind ju­di­cial ap­point­ments is that can­di­dates and ap­pli­cants lose out by ac­tu­ally lis­ten­ing to the com­mu­nity.

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