After her appointment to the U.S. Supreme Court, Sandra Day O'Connor observed that the significance of that decision was not that she "will decide cases as a woman, but that I am a woman who will get to decide cases." And so it is for Mary Ellen Barbera, the one-time Baltimore city school teacher who was appointed Wednesday by Gov. Martin O'Malley to Maryland's highest judicial office, chief judge of the Court of Appeals.
Not only is Judge Barbera the first women to be named to head the state's judiciary, but with the elevation of Baltimore's Judge Shirley M. Watts from the Court of Special Appeals to the Court of Appeals, women now constitute a majority on the high court. Only 11 other states have a female majority on their top courts, while 19 have a woman as chief judge.
That's an extraordinary advance from three decades ago when Ms. O'Connor broke through the glass ceiling to become the first woman to serve on the Supreme Court. At the entry levels, women have made great strides in the legal profession. In 1972, women represented 10 percent of law school students while today they are close to half.
But the problem has been in advancement to top positions. While women now represent nearly one-third of all lawyers (and half of associates), they are far less likely to run law schools or manage large private firms than men. Eighty percent or more of law school deans and law firm partners are male, according to the National Association of Law Placement. Female lawyers are even less likely to hold positions on corporate boards in this country. Only about one-in-ten law firms have female managing partners.
The judiciary is one place where women have been able to mark some of their best progress within the legal profession with women occupying about one-quarter of state judgeships. In Maryland, as of May, women held 107 of the 274 judgeships or 39 percent of the combined district, circuit and appeals courts totals. At the very least, Judge Barbera's appointment and the new female majority on the court should send a message to the next generation of women lawyers that the top jobs are open to them.
But it was also be a disservice to Judge Barbera to view her only through the prism of gender. By any standard, she was well qualified for the post, and her personal story is a compelling one. While teaching in city schools in the early 1980s, she took law school classes at night, earned her degree, took a job in the Office of Attorney General and was later made legal counsel to Gov. Parris N. Glendening. She served six years on the Court of Special Appeals before her appointment to the Court of Appeals in 2008.
Top of the new chief judge's to-do list will likely be to address the backlog of cases pending in the Court of Appeals and to heal the rift between the court and the legislature (much of it stemming from Chief Judge Robert M. Bell's clashes with Senate President Thomas V. Mike Miller over redistricting and the management of the judiciary). That the General Assembly has failed to address inadequate judicial salaries, for instance, is often attributed to that long-simmering conflict.
Of course, the retiring Judge Bell was a pioneer in his own right. He has been a true civil rights leader, not only as the first African-American to lead the high court but as a plaintiff in the Supreme Court case that established that racial discrimination at a private restaurant was a violation of the 14th Amendment under the due process and equal protection clauses. That six years ago he considered a ban on same-sex marriage unconstitutional — well before most of the country or even most judges on his own court — speaks volumes of his sensitivity to fundamental human rights.
Maryland's courts could use more Robert Bells looking out for the interests of the least powerful in society as much as they need diversity. Judge Barbera has big shoes to fill, as does Judge Watts who takes his seat on the court. Their appointments may be groundbreaking, but ultimately they will be judged by their performance on the bench and not their gender.