For the fourth election in the past six years, Rockville attorney Marylin Pierre is challenging a slate of incumbent judges in an effort to win a seat on the Montgomery County Circuit Court—and, once again, Pierre is seeking to put on trial the current process for selecting who sits on that court.
At a virtual forum Thursday sponsored via Zoom by the Bethesda-Chevy Chase Democratic Breakfast Club, Pierre appeared with four Circuit Court judges appointed over the past two years by either Gov. Wes Moore, a Democrat, or his predecessor, Republican Larry Hogan, from a list submitted by a trial courts nominating commission comprised of Montgomery County attorneys, following an extended vetting process.
Under provisions of the Maryland constitution, the four “sitting judges” —Marybeth Ayres, Jennifer Fairfax, Louis Leibowitz and J. Bradford McCullough —are now running to retain their seats for a 15-year term in a contested election against Pierre, who first ran unsuccessfully for Circuit Court judge in 2018.
Her decision to challenge the incumbent judges that year followed a period in which she acknowledged appearing nine times before the trial courts nominating commission, and being turned down for appointment on each occasion. Candidates such as Pierre not appointed to the bench are nonetheless eligible to file to run for Circuit Court judge if they are members of the Maryland Bar, have lived in the state for five years and for six months in the judicial district where the court on which they are seeking to serve is located.
While speaking in more restrained tones than she did in her 2020 race–when several controversial assertions by Pierre triggered an investigation by the state’s Attorney Grievance Commission and, ultimately, a reprimand by the Maryland Supreme Court last year for making a false statement—Pierre on Thursday continued to accuse the local trial courts nominating panel of inconsistent treatment of judicial applicants.
“Not everybody is treated the same,” Pierre said of the nominating commission, whose members are appointed by the governor. “What happens in that closed room … depends on who you are,” she contended, alluding to the interviews and background checks conducted by panel. “There are some people who are treated with kid gloves, and some people who are treated with very, very harsh gloves—and I was one of them.”
Her comments came immediately after Fairfax had praised the trial courts nominating commission process. “You are sitting in a room with 13 people who are really challenging your credentials and questioning your qualifications, in a way to assess your temperament in how you respond to questions,” she said, adding, “They’re also assessing your character through the process.”
McCullough also expressed a positive view of the vetting process, which he noted was created more than 50 years ago. “This is a process that’s been in place since Marvin Mandel [was governor] in the ’70s,” he said. “Every governor since … has followed this exact process. I think that the reason the process was put in place was to make sure when the governor exercises whatever discretion the governor has, that the appointment is made from a pool of the most highly qualified people.”
When the question of the vetting for gubernatorial appointments to the Circuit Court was initially raised at the candidate forum, McCullough responded by describing a “very thorough process” that starts with a lengthy written application, followed by applicant interviews with up to 14 specialty bar associations across the state, as well as interviews with the Maryland Bar Association and Montgomery County Bar Association.
That leads to the interviewing process by the trial courts nominating commission, followed by a “short list” of nominees being sent to the governor. “You may have 10 applicants with two or three folks being nominated—that’s how rigorous the process is,” McCullough said.
Added Fairfax: “In the interview with the governor, they have done a very thorough background check. When I was interviewed by the governor, he knew everything from my background, and clearly they had checked all of my references—and vetted me very thoroughly before the appointment was made.”
Pierre, however, questioned the influence of the specialty bar associations’ recommendations on the trial court nominating commission. “Yes, there are 14 or so bar associations that do the interviews,” said Pierre. “But truth be told, even if the bar associations love you or hate you, it really doesn’t matter that much: The decision makers are the 12 or 13 members of the [trial court nominating] commission.”
She was unsparing in her criticism of the latter. “I remember one member of the governor’s commission telling me that she thought that I was poor—and she said it in a way that made it seem like it was a character flaw,” she charged. “It was at that point I said, ‘There are two ways to become a judge and that’s exactly why the law was like that’—because the law recognized there are some commissions that are just not doing their jobs, and, because of that, there should be another way for someone to become a judge.”
Added Pierre: “The governor’s commission is not perfect: We’ve had judges who have done all kinds of things after being so-called vetted.”
The wisdom of holding contested elections for Circuit Court judge has been debated for more than five decades: Unlike Circuit Court judges, District Court judges in Maryland are appointed by the governor following vetting by the trial courts nominating commission, and confirmed by the Maryland Senate without standing for election.
In the case of Maryland Supreme Court and Appellate Court, judges are vetted by an appellate courts nominating commission, appointed by the governor and confirmed by the state Senate–before facing voters every decade in “yes or no” retention elections.
There have been proposals floated to switch selection of Circuit Court judges to a similar system. The Workgroup to Study Judicial Selection, created by the Maryland Judicial Conference and co-chaired by Montgomery County Circuit Court Judge Kathleen Dumais, is scheduled to issue a report in the coming months, in advance of a possible debate by the 2025 session of the General Assembly over whether to amend the state constitution to do away with contested elections for Circuit Court judges.
The judicial selection panel was created in the fall of 2022, and heard testimony suggesting that the current process of candidates for Circuit Court judge running in contested elections potentially compromises judicial impartiality—including the need to raise campaign funds, a significant portion of which may come from donors with interests in cases pending before the court.
In the May 14 primary, Ayres, Fairfax, Leibowitz, McCullough and Pierre will appear on both the Republican and Democratic primary ballots for the four available Circuit Court nominations. If the four incumbents are the top vote getters in both primaries, they will be assured of keeping their posts in the November general election.
Pierre failed to advance past the primary election in 2018 and 2022, but garnered one of the four available Democratic nominations in 2020—leading to an often-acrimonious general election contest. At one point, the re-election committee for the four incumbents running that year obtained a restraining order against Pierre, charging she was falsely portraying herself as a sitting judge.
But pockets of resistance to doing away with elections for Circuit Court judges remain, particularly among some minority group leaders—who have regarded judicial elections as a fail-safe to ensure diversity on the bench in many of the state’s 24 major jurisdictions. In four Circuit Court elections in three counties in 2020—including two in neighboring Prince George’s County—Black candidates ousted white incumbents who had been named to the posts via gubernatorial appointment.
Proponents of doing away with judicial elections have argued that recent governors have significantly increased the diversity of Circuit Courts around the state. Data collected by the Workgroup to Study Judicial Selection show that, as of the spring of 2023, nearly 30% of the state’s Circuit Court judges were Black—nearly equal to the state’s 32% Black population.
Pierre, however, took issue at Thursday’s forum with the number of Blacks on the Montgomery County Circuit Court. “I am running for judge because I would love to have the idea of people being treated equally reflected in the numbers that we have,” said Pierre, who immigrated from Haiti as a child. “The public defender’s office says that 90% of the juveniles that are tried as adults are Black, and the judges make the decision” on whether to try them as adults.
Pierre continued: “Maryland incarcerates a higher percentage of its young Black males than any other state in the country… . The reason that happens is that the judges give our young Black males excessive sentences. The research is out there.”
In a swipe at her incumbent opponents, each of whom emphasized the need for judges to be fair and open-minded with no pre-set agendas in their opening statements at the forum, Pierre declared: “It’s one thing to say I’m fair, I’m fair, I’m fair. It’s another thing to ignore what the research actually shows. No one has addressed how come, if everyone is fair, why is the research the way it is.”
Statistics from the judicial selection workgroup show that, as of early 2023, about 17% of the county’s Circuit Court judges were of African-American descent, as compared to the county’s nearly 21% Black population.
Pierre advocated restorative justice—a concept popular in progressive circles that focuses on rehabilitation of offenders through reconciliation with victims—as an alternative to what she termed “the failed experiment of mass incarceration.” Her comments encountered some pushback from a couple of her opponents.
Restorative justice is “something that is being tried in the Montgomery public schools, and which Ms. Pierre talks about a lot on the campaign trail,” Leibowitz said. “A lot of what it involves is having the perpetrator and the victim sit down together and talk about the wrong. In some public school situations, that’s possible. But in a lot of court situations, it’s not possible. So … it just may not be practical in a lot of situations that the Circuit Court deals with. “
McCullough framed the issue raised by Pierre as “largely an access to justice question,” and said an effort needs to be made to encourage greater pro bono participation by the legal community. “The number of folks who represent themselves in important custody matters is really disturbing,” he noted.
“I know Marylin is focused on the criminal justice side of things, and what she thinks judges should do,” McCullough said. Citing prior comments by Leibowitz, McCullough added, “I do want to echo what Judge Leibowitz said, which is the idea that we have to look at each case as an individual case. In fact, as judicial candidates, we’re precluded by the code of judicial ethics from making promises—or saying what we would do or not do in the type of cases to come before us.”
