Maryland: comparing/contrasting 4 House bills seeking to change way Circuit Court judges are chosen; hearing this week

On Thursday the Maryland House Judiciary Committee is set to hear debate on 4 different constitutional amendments (HB 223, HB 224, HB 388, HB 448) to change the way the state’s Circuit Court judges are chosen. While all 4 move away from elections and towards a quasi-federal system, they differ in terms of mechanics.

Initial appointment: governor nominates, senate confirms (majority or supermajority)

All four provide that when a vacancy occurs in the Circuit Court, the governor would appoint someone meeting the minimum legal, age, and residency requirements for the office. In HB 224, HB 388, and HB 448, the governor’s pick would then be subject to senate confirmation by simple majority vote.

HB 223 stands apart here. Under the terms of that plan the Senate would have two levels of confirmation

  • 80%+: nominee is confirmed. No further action required.
  • 50.1%-79%: nominee is only confirmed for 1 year and must face a contested election in the next general election. Of the 13 states that use some form of legislative confirmation (House, Senate or both) none have a supermajority confirmation requirement.

The contested election under HB 223 also contemplates the candidates running against the sitting judge would be running to remove the judge from office but not necessarily for them to win the office itself. The “winning” candidate would only be able to force the judge out of office and create a new vacancy.

The approval or rejection of the judge by the registered voters shall be by contested election in which other candidates who are qualified for the office of circuit court judge may file as candidates. If the judge fails to win election in the general election, the office becomes vacant 10 days after certification of the election returns.

No default confirmation

Also notable is the lack of default confirmation in the 4 plans. In light of the delays in federal judicial confirmations the states that have considered or enacted confirmation plans (such Kansas for its Court of Appeals & Tennessee’s for all its appellate courts) have provided for a default confirmation that would put the nominee in office if the legislature failed to approve or reject in a certain time period.

Lack of judicial nominating commissions

All 4 plans avoid using a merit/commission based system which would restrict the governor to a list of individuals chosen by a judicial nominating commission. Although various Maryland governors have created such advisory commissions in the past, they are now at the discretion of the current governor. Only HB 448 discusses a commission and include a proviso that if a governor opts to create such a commission, “the commission or body shall reflect the demographic diversity of the state of the judicial circuit for which the commission or body is charged with proposing nominees.”

Additional terms in office: retention elections vs. reappointment & reconfirmation

The bills split on how judges would remain in office. HB 223 and HB 448 provide for reappointment & reconfirmation. HB 224 and HB 388 provide for yes/no retention elections in each county or the City of Baltimore (which is its own independent autonomous city not within any county).

Terms in office: keep 15 years or reduce down to 10 years

Another key difference between the bills is how long Circuit Judges would remain in office. Only HB 224 would keep the term at the current 15 years. The HB 223, HB 338, and HB 448 would reduce the term down to 10 years.