OPINION | Maryland Circuit Courts need to deliver on a 50-year-old promise
Two months after his inauguration, Governor Wes Moore joined a nearly 50-year tradition. Like his predecessors, Governors O’ Malley and Hogan, he signed the words, “the appointment of persons to the judiciary from a diversity of backgrounds enhances the quality of justice” in Executive Order 01.01.2023.04.
In doing so, Moore established judicial nominating commissions for Maryland’s circuit courts and reaffirmed Maryland’s commitment to the idea that a diverse judiciary is a just one.
Even so, we judge leaders not by their words, but by their results. What is the current state of diversity in Maryland’s circuit courts?
New data paints a bleak picture. The first county-level analysis of circuit court demographics shows that minorities are systematically underrepresented on the bench. Of Maryland’s 24 circuit courts, 16 have judiciaries composed entirely of white judges, and just four circuit courts have Black judges proportionally representative of the Black population in their jurisdictions.
Our judicial system has become a two-tiered system: certain communities judge, while others get judged. When one group occupies the bench while another fills the defendant's chair, we don’t have blind justice; we have biased justice.
The same pattern is also evident with other minority groups. Twenty-two circuit courts presiding over 236,000 Asian Marylanders have no Asian representation, and twenty-one circuit courts presiding over 452,000 Hispanic and Latino Marylanders have no Hispanic or Latino representation. These disparities are so severe that, statistically, they cannot be due to chance alone; the systems we employ to select circuit court judges are undermining our promise of diversity.
Historically, research suggests that diversity and representation on the bench have a quantifiable impact on judicial outcomes. Black judges have been shown to impose fewer conditions on pretrial release, while judges with corporate backgrounds are more likely to rule against workers in discrimination cases. A diverse set of judges can lead to better jurisprudence.
That seems to extend to Maryland. The same analysis of circuit court demographics revealed suggestive patterns that jurisdictions with more representative circuit courts tended to also have lower incarceration rates.
We face a heavy reality; we have a promise to fulfill, a systemic bias to correct, and a duty for a more equal justice. Luckily, other states have paved the way.
First, look to Arizona’s constitutional amendments. Arizona faced similar disparities in the 1990s when advocacy groups documented that white men were consistently being appointed over qualified candidates of color and women. In response, Arizona voters approved constitutional amendments requiring that nominating commissioners reflect the state's diversity and consider diversity when selecting nominees.
We can take similar steps. Maryland should require that commission membership reflect the racial, ethnic, and gender diversity of its counties, mandate diversity-focused training for all commissioners, and publicize the entire nomination process.
Arizona’s constitutional requirements helped make it among the highest-ranked for judicial diversity in the nation. Maryland’s commissions should be similarly transparent, trained, and representative so they can make fair, impartial decisions regarding who sits on our bench.
Second, adopt California’s data collection strategies. In 2011, the state codified comprehensive demographic data collection requirements, mandating that the Judicial Council collect and publicly release annual demographic reports on gender, race, ethnicity, sexual orientation, gender identity, veteran status, and disability status for all state court judges, disaggregated by specific jurisdiction. The Governor and the State Bar's Commission on Judicial Nominees were required to collect similar data on all judicial applicants.
Our most dangerous biases are the ones we do not see. Maryland doesn’t have to manage its courts blindly.
Maryland should codify California’s comprehensive model of standardized demographic collection of applicants and judges, annual public reporting by county, and real-time dashboards showing progress towards representative courts.
Lastly, we don’t have to look far for solutions. In our own state, former Governor Larry Hogan demonstrated what a targeted effort can accomplish when he re-advertised vacant Supreme Court positions after initial applicant pools lacked diversity. The result was one of the nation's most diverse state supreme courts.
This should continue to be our attitude towards the judicial candidate pipeline. Maryland should support specialty bar associations in conducting recruitment campaigns to underrepresented communities and extend application deadlines when initial pools lack diversity.
For far too long, our promise for a diverse judiciary has remained unfulfilled. We have a chance to break that pattern. Governor Wes Moore’s take on a 50-year tradition need not look identical to his predecessors. It can look more diverse. It can look more just. It can be a step forward.