Editorial Advisory Board: Judicial appointments, off the menu

A judicial vacancy was created earlier this year when Washington County Circuit Judge Kenneth Long Jr. reached the mandatory retirement age. Gov. Larry Hogan recently appointed Del. Brett Wilson, R-Washington, to the bench.

The vacancy was advertised, and applicants wishing to be considered were told to submit their names to Washington County’s Judicial Nominating Commission. The commission’s job is to vet the applicants and send to the governor the names of those found qualified. The commission met and failed to make any new recommendations for this vacancy from the pool of applicants who applied for this new vacancy.

There were already three candidates who were previously approved and whose names had previously been sent to Hogan in connection with a 2016 vacancy (and thus remained eligible for consideration for this vacancy and others until their eligibility expires in 2018). Instead of making the selection from the three prior approved candidates, Hogan chose to interview all of the other candidates who had applied, and then the governor ordered “off the menu,” of approved candidates, selecting Wilson. A Hogan spokesman told The Daily Record last month “…we did (the commission’s duty) for them.” (It should be noted that Brett Wilson was considered a strong candidate for the 2016 vacancy, but was not nominated by the commission.)

This is not intended to detract from Judge Wilson’s qualifications. Instead, the purpose of this editorial is to ask why the governor, who appointed the commission by executive order so as to remove from the appointment process as much as possible favoritism, cronyism and the possibility of appointing an unqualified judge, would bypass the recommendations of his own commission.  Instead, Hogan announced Wilson had gone through a “careful and thorough vetting process.” Who did the vetting, we ask? What was the criteria?

More important, we feel, is the integrity of the process requires that if the governor appoints a commission to vet the qualifications of applicants, the governor should follow the recommendations of the commission and order from, and not off, the menu.

We are aware that, in the past, governors have returned lists to the judicial nominating commissions because a favored applicant was missing, and frankly, some of those candidates who failed to make the list were quite impressive. But when a list was returned, and an applicant was reconsidered, and his or her name was added to the list, the governor at least chose from the list. The process may be subject to being political farce, but even at its worst, it suggests that appointees have been independently vetted.

If a commission is appointed to select candidates for judicial appointment, as has been the case since Gov. Marvin Mandel first did so in 1970, the governor should not simply bypass the process and select an applicant who was considered but not included.  At the least, choosing from a name on a commission’s list, even a revised list that resulted from the governor rejecting an initial list, says something good about the applicant’s qualifications to be a judge.

Insiders might think it is political theater, but at least to the general public it says that the candidate has been judged by his or her peers to be qualified.  The perceived integrity of the process remains intact. Selecting off the list raises the question, “Why did the governor choose this candidate?”

Brett Wilson may be a fine candidate and a good judge, but will this bypass of the process forever raise questions about his qualifications? We hope not. We believe the judicial nominating commission process works well, and we would strongly prefer the process be allowed to proceed without pressure from the governor, and without the practice of rejecting lists that do not include the governor’s choice. But even that practice is far superior to what occurred here.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Susan Francis

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.