At the slew of candidate forums this campaign season, the ones for Circuit Court judge candidates have been the sparsely-attended opening acts to the headlining mayoral candidates. In making their bids to rule on everything from divorce settlements to homicide sentences to bail amounts, the state's highest trial court judges are struggling to be heard. Few Baltimore City residents know the judicial candidates they're being asked to elect or even why they are voting on judges at all. This year's race is oddly competitive and has stoked fiery debate, but the candidates do seem to agree on one thing: most voters come to the polls knowing little about them or the process.
When they come up for re-election, the incumbent judges almost always win, some years facing little to no opposition. But not so this time around, and the campaigns are in play to prove it.
City Councilman James Kraft and public defender Todd Oppenheim are vying to replace two of the six sitting judges, who have presented a united front for the status quo by running as a group. On April 26, the eight nonpartisan candidates will appear on both the Democratic and Republican ballots to fill six spots on the bench.
Baltimore's Circuit Court race is open to any five-year member of the Maryland State Bar Association, unlike the District and Appeals court judges, which are vetted before appointment by the governor's office, but do not appear on the ballot.
Oppenheim has been a public defender in Baltimore for over a decade and has campaigned heavily for bail reform. He says he will be a "true independent impartial voice on the bench." Instead of running for a fourth City Council term, Kraft, perhaps the most recognizable name on the judicial ballot, has promised to bring "new perspective" to the bench.
Kraft and Oppenheim have no record as judges to run on. Instead, their respective campaigns emphasize years of work with the public as evidence of their good judgment, and they are appealing to voters to reconsider the typical default vote for the sitting judges.
The sitting judges, by contrast, are running on their collective record and have avoided political rhetoric, emphasizing the impartiality of their role—a strategy Oppenheim has criticized as "a fallback position where you don't have to express your philosophy" as individuals.
Judge Wanda Keyes Heard, who ran unopposed in 2000 and is vying to keep her seat this year, defends the decision, saying the decision to campaign together is based on a common experience, "(The sitting) judges went through the vetting process and the challengers did not," she says, speaking on behalf of the sitting judges.
As a group, the six incumbents have varied roles and experience. Judge Heard has been on the bench for 17 years; other candidates on the ballot are in their second year.
The process is complicated, but here's how it works. Typically, judges are appointed to the bench by the governor and then have to run for reelection every 15 years. Some of them, having been appointed upon the retirement or death of another judge, are now running to keep that seat. More often than not, this is how judges get their start on the bench, allowing them to run as incumbents without ever having faced the voters—an unfair advantage, say critics of the judicial elections system.
On the flip side, non-sitting candidates like Oppenheim and Kraft—if they win—would bypass the gubernatorial appointment process and go straight to office. Circuit Court judges appointed by the governor are subject to a vetting process, and the judicial election serves to confirm them in that post—unless they are defeated. After a 15-year term, they must run again.
It's unusual for a sitting judge to be defeated in the election, but it does happen. In 1980, the prominent attorney Billy Murphy defeated a sitting judge in the race for the Circuit Court bench.
Kraft, now 66 years old, would only serve a few years before the current mandatory retirement age of 70, though an amendment to the state constitution to extend the retirement age to 75 could be voted on later this year.
Judge Heard has questioned Oppenheim and Kraft's campaign promises, suggesting that her opponents may be campaigning beyond the range of a judge's role.
"Having not been a judge they may not realize these things that they think they can do and are telling the public they will do, are not things they will be able to accomplish as judges"—such as Oppenheim's campaigning for bail reform and Kraft's call for more widespread use of alternative probation conditions, such as mandatory drug treatment programs and GEDs.
"One of the things judges have ability to do is to put certain conditions on probation. I don't think they're being used enough," Kraft says.
Oppenheim has countered that the judge's bench allows "tremendous discretion" on bail issues, but the sitting judges have chosen to take on a "really strict interpretation of the judicial rules" as a campaign strategy.
The system of judicial elections has been criticized for politicizing the role of judge and opening the field to any five-year member of the Maryland bar who wants to launch a campaign for the job.
But the Circuit Court's system of judicial elections was put in place decades ago to solve a different problem: a lack of diversity—political, racial, and otherwise—on the bench.
A look at this year's incumbent judges could be seen as a testament to the Circuit Court's success at achieving diversity. Five of the incumbent judges this year are women, two of them are African-American, one Hispanic; one is an active member of the Jewish community, another of the LGBT community. As it happens, both non-sitting judges running this year are white men.
A lack of knowledge about the candidates or their opponents leads many voters to default on re-electing the sitting judges, which both the sitting judges and their opponents acknowledge as a major problem.
"I'm not surprised that they [the voters] are not aware," says Heard. "Our format has been to go out and educate the public, to get our credentials out there."
But Kraft says that while some of the sitting judges are "excellent," judges are too easily retained.
"No one looks at who they are, and then you end up re-electing people who shouldn't have been there in the first place," he says.
The last judicial election in 2014 saw six sitting judges face a single opponent in attorney Page Croyder. She ran specifically to defeat Judge Alfred Nance, who has been investigated several times for his behavior in court and reprimanded by the Judicial Disabilities Commission. She lost, and the sitting judges swept all six seats, re-seating Nance, a chief judge, for another 15-year term.
Courts across the country run the gamut in terms of the appointment process. In 38 states, voters elect at least some appellate and major trial court judges—or more often, confirm them—through an election.
The system of judicial elections has been subject to much scrutiny. There are campaigns around the state and the country devoted to upending the process.
But here, the Circuit Court judges, who are supposed to be independent and impartial, are politicized through the campaign to keep their jobs, says Douglas Gansler, a former Maryland Attorney General. He has pushed several bills to get rid of judicial elections in the state—so far unsuccessfully—and to move to a retention ballot system where the governor appoints the judges, and voters decide whether they want to keep them after their term. That system, which Gansler describes as the "gold standard," is currently used in Maryland's District courts.
Knocking on doors and launching a political campaign to win a judicial seat could be effective, but "totally dangerous," he says. "For example, Jim Kraft could be very formidable in this contest. People know him. What won't necessarily be tested is his ability to be a judge."
But Judge Heard didn't think it was time to do away with the electoral system just yet. "It keeps governors thinking about the appointments and keeps them grounded in making sure the selection process is fair," she says.
"I don't think the time has come to do away with the electoral process for judges. Maybe sometime down the road." She says the judicial elections should remain until they can impact the appointment-based courts that still lack diversity. "There's never been an African-American woman appointed in the U.S. District Court for Maryland—that office is only appointments," she says.
"I think it's a great idea, it's a shame that the electorate isn't more informed," says Oppenheim. "There's no other accountability method that we have to check judges."
The first round of the Circuit Court judicial election will take place on April 26th.
The Sitting Judges
Judges Shannon E. Avery, Audrey J.S. Carrion, Michael A. DiPietro, Karen Chaya Friedman, Wanda Keyes Heard, and Cynthia H. Jones are running for re-election as a group. They are running a single campaign that leans on their collective experience on the bench. "We are a diverse group with a demonstrated commitment to public service and are active in our respective communities," says Jones.
The judges come with a wide range of experience in the courts and they have been on the bench from between two and 17 years. A gubernatorial nominating commission vetted the judges at the time their initial appointments. The judges are all coming to the end of 15-year terms—but not necessarily their own 15 year term. In most cases, a sitting judge has already been vetted and appointed by the governor by the time of the election. When a sitting judge steps down, another judge is appointed to finish out his or her term. And at the end of that term, the newly appointed judge must run for re-election.
Meet the opposition:
Todd Oppenheim has been a public defender since 2003 and is a graduate of the University of Baltimore School of Law. He has criticized the process of appointing judges for nepotism. Oppenheim has campaigned for bail reform and has criticized the sitting judges for their focus on following the strict states of the court, arguing that they have "tremendous discretion" on court matters such as bail, and have too strictly interpreted the judicial rules to protect them from speaking out on issues of the court.
Jim Kraft may have the most name recognition of anyone in the pool. A 12-year City Councilmember in Baltimore's 1st District and a prominent member of the Maryland Democratic Party, he is stepping down from City Council in order to make a bid for the Circuit Court bench. He says he will bring a "new perspective" from his experience working directly with constituents. "I've been vetted over and over again" by the newspapers and voters, he says. "I come to the bench with a view from the community, from how law impacts people on a day to day basis." Kraft, who holds a J.D. from the University of Baltimore (1979), has criticized the sitting judges for failing to understand community needs on the ground.