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Women to lead state's highest court

Barbera named chief judge, Watts appointed to top court

By Erin Cox, The Baltimore Sun

10:02 AM EDT, July 3, 2013

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Maryland achieved several milestones Tuesday as Gov. Martin O'Malley named the first woman to lead what will be the first female majority on the state's top court.

The appointments, announced Wednesday in Annapolis, mark a shift in a male-dominated profession and put Maryland among a minority of states with their highest courts led by women.

"In every generation we make progress toward the sort of country we want our kids to grow up in," O'Malley said.

O'Malley elevated Court of Appeals Judge Mary Ellen Barbera to be chief — the highest-ranking judge in Maryland — and he appointed Court of Special Appeals Judge Shirley M. Watts to take the seat of retiring Chief Judge Robert M. Bell.

If confirmed by the Senate, Watts would be the fourth woman on the seven-member court — the first time women would hold a majority in the court's more than two-century history. Watts also is the first African-American woman to be appointed to the court.

Legal observers say the expanding role of women in Maryland courts represent the culmination of a trend that began 40 years ago when female enrollment in law schools spiked.

"We've made some historic strides, but really that's attributable to the women in the legal profession here in Maryland who have demonstrated such outstanding skills in the courtroom and as lawyers and judges," said O'Malley, whose wife, Catherine Curran O'Malley, is a Baltimore district judge.

The appointments come at a time when most American power centers, including courts, are still dominated by men. Nationally, only 36 percent of judges in top courts are women. State legislatures are 24 percent women. Corporate board rooms: 15 percent women.

Only eleven other states have a majority of female judges on their top courts, and 19 have women as the chief judge, according to data compiled by the National Center for State Courts.

"Hopefully it will become the norm," said Joan Churchill, president of the National Association of Women Judges and a retired U.S. immigration judge who lives in Montgomery County.

Barbera and Watts are "just great, great appointments," Bell said Tuesday. Bell is required by law to retire from the Court of Appeals when he turns 70 on Saturday.

Barbera, 61, was appointed to the Court of Appeals in 2008 after jobs as an assistant attorney general, as legal counsel to Gov. Parris N. Glendening and a Court of Special Appeals judge. Watts, 54, was appointed to the Court of Special Appeals in 2011, following nine years as a Baltimore City Circuit Court judge and stints as an assistant state's attorney and federal public defender.

Neither judge agreed to be interviewed in advance of the announcement.

More than three-fourths of the women on top courts across the country were appointed since 2000.

"That's the progress that's been made: Enough women have had the opportunity to prove themselves," said Sheila K. Sachs, a Baltimore attorney who is chair of the judicial nominating commission. That panel recommended Watts along with four other candidates — three of whom were men — to represent the Baltimore area, a position Bell has held since 1991.

"I graduated law school when no woman had been hired by a major law firm in Baltimore," said Sachs, who earned her law degree from the University of Maryland in 1964. "Decades afterward, they [women] began to come out of law school in greater numbers, they proved themselves, and now you're seeing the result of that. … It's all a recent phenomenon. Thank God, it's happening."

When Barbera graduated from law school in 1984 and when Watts graduated in 1983, roughly 40 percent of law students were women — up from 23 percent a decade earlier, according to data complied by the American Bar Association.

Baltimore attorney M. Natalie McSherry, one of the finalists to replace Bell, called the majority female court "inevitable, I would like to think.

"It obviously has some historical significance, every first does, but I'd like to think that we're past that," McSherry said, "It shouldn't be a question of how many men and how many women. It should be a question of who is the best qualified. When will there be enough [women]? When we stop talking about it."

In 1979 Judge Rita Davidson was the first woman appointed to the state's top court. Davidson's five-year tenure ended nine years before the next woman, Judge Irma Raker ,was appointed. Raker served nine years before a second woman, Judge Lynne A. Battaglia, was appointed to join her on the court in 2002.

"Studies show that if you have one woman in isolation that her influence is quite limited, because she's just a token," said researcher Joan Williams, a law professor who has specialized in gender and employment for 20 years and currently works at the University of California's Hastings College of the Law. "The important point is that we're not there anymore."

In 1989, Maryland's legal community launched a commission to study gender bias in court rulings, law school educations, and judicial appointments. It found only one woman on an appellate court, and 19 Maryland counties with no female judges at all. When the Select Commission on Gender Equality issued its second report in 2001, it found that between 1989 and 2001, women went from 9 percent of Maryland judges to 23 percent.

Bell, then the chief judge, wrote that despite the progress, "We have yet more to do." The report found no women serving on district or circuit courts in 14 Maryland counties.

"For everyone in the legal system, to see a judiciary or a professional staff that looks like their community, I think that emphasizes trust and confidence that they are going to get a fair shake," said retired Montgomery County administrative judge Ann Harrington, who chaired the commission in 2001. "Our past four administrations have been very focused on making sure that our appointments reflect our community. … There were a lot of minorities appointed, a lot of women appointed, and the sky didn't fall. Everyone did well."

Nancy A. Sachitano, president of the Women's Bar Association of Maryland, called the appointments of a majority of women to the state's highest court "only significant in the fact that it has not happened before."

In late April, Supreme Court Justice Ruth Bader Ginsberg remarked at a conference about women on the Supreme Court: "Sometimes I'm asked the question 'When will there be enough?' and I say, 'Well, when there are nine.' For most of the country's existence, there were nine of the same sex and they were all men, and nobody thought that that was out of order."

Could the same be said of Maryland's Court of Appeals? "That will probably be a question for the next governor to answer," O'Malley said.

ecox@baltimoresun.com

Mary Ellen Barbera

Age: 61

New job: Chief judge of the Court of Appeals

Home district: Montgomery County

Experience: Judge, Court of Appeals and Court of Special Appeals; assistant attorney general; legal counsel to former Gov. Parris N. Glendening. Taught in Baltimore City schools from 1975-1984.

Law degree: University of Maryland School of Law, 1984.

Shirley M. Watts

Age: 54

New job: Judge, Court of Appeals

Home district: Baltimore City

Experience: Judge, Court of Special Appeals and Baltimore City Circuit Court; assistant state's attorney in Baltimore; assistant federal public defender; federal administrative law judge and chief administrative law judge for the Social Security Administration.

Law degree: Rutgers University School of Law, 1983.