The great Federalists from Virginia and New York, James Madison and Alexander Hamilton, didn't agree with the anti-Federalist views of Maryland's Jeremiah Chase on the organization of American government. However they all saw eye-to-eye on one matter: the selection of judges.

The founders would likely be appalled at Maryland's judicial system today. It has degenerated into a partisan free-for-all, with impartial judges forced to raise campaign cash in ever-larger amounts while locking out the fastest-growing political group in the state: independents. It's time to change this system and make it fair for all citizens of Maryland.

The founders understood that courts and judges were special institutions in a democracy that needed to be insulated from "intemperate" political influence. Madison argued that the "primary consideration ought to be to select that mode of choice which best secures" a well-qualified jurist.

Maryland's 143 Circuit Court judges must enter an election that is nominally "nonpartisan." Electing judges this way runs counter not only to Madison and Hamilton's advice, but also to the counsel of the national and state bar associations, the recommendations of the Commission on the Future of Maryland's Courts and a host of other watchdog groups.

Most judges in Maryland are appointed using a reasonable democratic process. The governor (with the consent of the Senate) has ultimate say over the Court of Appeals, Court of Special Appeals and District Court. Judges on the appeals courts face voters in retention elections every 10 years. This method has served Maryland well for more than two centuries. But in 1970 the law was changed over concerns that the judicial appointment process didn't give women and minorities a fair chance.

Since then, Circuit Court judges have faced contested elections against any lawyer who is a member of the state's bar association. It doesn't matter if the judicial nominating commission has found the lawyer "unqualified" to serve. Candidates can make the nominating commission irrelevant. They just skip the interview process and go right to the election. And that's where political mud-wrestling takes place.

The 2004 and 2006 St. Mary's County judicial elections are prime examples of everything that is wrong about Maryland's system. Several well-funded, partisan challengers publicly hurled personal invectives or outright falsehoods in bitter campaigns. Others attacked "liberal activist judges" who would carry out agendas that included partial-birth abortion on demand, gay marriage, and a ban on the pledge of allegiance in schools. The challengers had the luxury of spelling out specific judicial platforms, taking set positions on issues such as bail bonds, work release programs, and truth in sentencing. (Disclosure: The authors are friends with one of the judges on the Circuit Court in St. Mary's County.)

Sitting judges are disadvantaged under this system. They have to campaign on their record while maintaining the difficult balancing act of politicking, raising money from lawyers, and making decisions every day in court. Studies show that voters have very little information about sitting judges and their record on the bench.

Maryland's judicial elections problem is compounded by the disenfranchisement of unaffiliated voters. More than 440,000 people -- more than 14 percent of state voters -- do not get a chance to cast their votes for judge until the general election. The primaries decided the elections in St. Mary's in both 2004 and 2006. More than 6,000 registered unaffiliated voters in St. Mary's never had the opportunity to choose.

Maryland's nonpartisan system actually encourages partisanship and often punishes the more moderate candidates, who fail to rally a partisan base of support.

The separation of powers and the protection of the judiciary from popular "factions" that Madison held dear are undermined when judges must take into consideration the coattail effects of other popular (or unpopular) candidates for legislative or executive branch offices on the ballot.

The framers of the U.S. Constitution never envisioned the judiciary to be chosen directly by the people. Hamilton wrote that "there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges." It is time for the legislature to get serious about ending the rank partisanship, electoral flaws, and opportunity for unqualified jurists to reach the bench of the state's Circuit Court via contested popular elections.

Britney Spears' effort to regain access to her two small children will go back to court on Monday for what a lawyer described as "the most significant hearing in the case so far".

Police and emergency medical technicians who were summoned to the singer's Los Angeles home on January 3 in a stand-off involving her refusal to return the boys to ex-husband, Kevin Federline, will testify, probably behind closed doors, Mr Federline's lawyer said.

"I don't know if she will be there," Mark Kaplan said, but he suggested she would have to appear in person if she wanted to press her request to see her children.

"You can't phone this one in," he added.

If Spears comes to court, Mr Kaplan said she would be expected to testify. "She will have the opportunity to persuade the court that she can have some visitation under monitored conditions," he said.

Phone and email messages requesting comment from Spears' lawyers were not immediately returned.

Mr Kaplan said he knew it was only a temporary measure when he obtained emergency court orders two weeks ago granting sole physical and legal custody to Mr Federline.

"These are very, very draconian orders," he said. "Because of that the court wanted to have a hearing to give her and her attorneys the opportunity to refute some of the declarations.

"No judge likes making orders terminating a person's involvement with their kids."

Meanwhile, police were preparing for a media frenzy in the downtown Los Angeles civic centre if Spears appeared, issuing warnings that vehicle and pedestrian offences would lead to prosecution.

In a suit against ex-Defense Secretary Donald Rumsfeld and individual U.S. military officials, the four men argued that the defendants had engaged in criminal conduct.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 3-0 that the men should have invoked a different law when they filed their lawsuit.

"Criminal conduct is not per se outside the scope of employment," a requirement for bringing a claim under the Alien Tort Statute, said the decision by appeals judge Karen LeCraft Henderson, an appointee of President Bush's father.

The four men challenge the methods Rumsfeld and the military officers used, but the former detainees don't allege that the defendants "acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence," the court said.

"Therefore, the alleged tortious conduct was incidental to the defendants' legitimate employment duties," the ruling added.

The four British men also brought constitutional claims and claims under the Geneva Conventions and the Religious Freedom Restoration Act.

Rejecting all of the men's allegations, the appeals court overturned the only part of a lower court decision that hadn't already been dismissed. That was the alleged violation of the Religious Freedom Restoration Act.

"Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with the definition of 'person,'" the court ruled. The law provides that the "government shall not substantially burden a person's exercise of religion."

The ruling came on the sixth anniversary of Guantanamo Bay being used to house detainees gathered from around the world as part of the U.S. war on suspected terrorists.

The other two judges in the case are Janice Rogers Brown, an appointee of President Bush; and A. Raymond Randolph, an appointee of Bush's father.

The defendants in the case include retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff. The four who sued are Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith, all British citizens and residents. They were sent back to Great Britain in 2004.

The appeals court ruling comes at a time when the Supreme Court is considering whether other prisoners still detained at Guantanamo Bay have a right to challenge their confinement in U.S. courts.

Rasul, Iqbal and Ahmed allege they traveled to Afghanistan from Pakistan to provide humanitarian relief the month after the Sept. 11 attacks. Al-Harith says he traveled to Pakistan the same month to attend a religious retreat.

All four wound up at Guantanamo Bay. There, they allege, they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme medical care and communication. They also allege they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet bucket.

Al-Harith says that he was first imprisoned by the Taliban who accused him of being a British spy. When the Taliban fell, he says he contacted British embassy officials to secure his evacuation, but that U.S. forces in coordination with British officials sent him to Guantanamo.