SUBSCRIBE

Changes slated for selection of state judiciary

THE BALTIMORE SUN

Anticipating his turn to shape Maryland's bench, Gov. Robert L. Ehrlich Jr. intends to reverse what he called his predecessor's custom of letting politics play too prominent a role in determining who becomes a judge - while he appoints more Republicans.

"Decisions made by judges play out in the lives of so many people in so many different ways you tend not to think about. I take it extremely seriously," Ehrlich said of his power to fill judicial vacancies.

"I think that there's a sense that this needs to return to that kind of heightened status, which I certainly want to do."

Naming judges is one of the Maryland governor's most powerful functions, along with devising the budget, wielding the veto pen and having the last word on whether a death row inmate lives or dies.

Judges in Maryland enjoy terms that generally last until forced retirement at 70. While Circuit Court judges must run for election after they are appointed, it is rare for one to lose.

Judges' rulings can set legal standards for everything from search-and-seizure procedures to how much money a plaintiff should get for medical malpractice to whether the government can take property from citizens to grandparents' rights to see their grandchildren.

Through appointments, a governor has the potential to shape the judiciary for decades longer than he is in office. Of the 271 appellate, circuit and district judges in Maryland, former Gov. Parris N. Glendening selected more than 60 percent (not counting reappointments).

As one of his first acts as governor, Ehrlich plans to change the composition of the commissions responsible for interviewing judicial candidates and suggesting nominees to the governor.

The commissions, which have no authority beyond the ability to recommend, were created by Gov. Marvin Mandel in the 1970s.

Currently there are 16 trial court commissions made up of 13 members each, and one 17-member commission for the state's two appellate courts.

Under Glendening, the members included six nonlawyers, appointed by him, and six lawyers, four of whom were elected by their peers and two appointed by him - a change he made in 1995. The governor also chose the commission chairman.

"There are a number of people who believe that it became too political, that potentially the governor would appoint people who would do his bidding. People lost their objectivity," said James Nolan, president of the Maryland State Bar Association.

Ehrlich, an attorney, plans to add more lawyers to the commissions. His administration - as well as his wife, Kendel, also an attorney - are discussing whether all the lawyer-members should be elected by fellow lawyers so the commissions would appear more independent.

"It's been my view that the system has become a little more politicized than it used to be," Ehrlich said. "And one way you remedy that problem, in my view, is to have more lawyers in the nominating commissions."

Still, Ehrlich knows as well as anyone that there is no way to excise politics from political appointments. He readily acknowledges that he will appoint more Republicans to the bench. (No appointees are left from his GOP predecessor, Spiro T. Agnew, who served between 1967 and 1969).

And the commissions are hardly free of politics. It is common - and accepted - for applicants to enlist sitting judges or others close to the governor or commission chairmen to make calls and write letters on their behalf.

Since Ehrlich came to office, hundreds of people have expressed interest in serving on the nominating commissions, some in hopes of getting more conservative judges elected, said Jervis S. Finney, Ehrlich's legal counsel.

But Ehrlich says party affiliation is not at the top of his list of judicial qualifications. He will not apply a litmus test to nominees on certain issues and he doesn't want judges to exert their personal ideology from the bench.

"I want lawyers who want to be judges, not legislators," Ehrlich said.

"This whole idea of getting on the bench because you couldn't get elected to the General Assembly - playing out your kind of philosophical orientation on the bench - is not a popular one with me," he said.

Equally important, he added, is temperament. As an attorney, "I have seen that judicial disease take hold at times, wherein someone who you think you know, and who has a certain demeanor and temperament, changes once they reach the bench," he said. "I am very sensitive to that issue. That disease is not a good one."

As for diversity, Ehrlich says it's "an important issue - a credibility issue. But by the same token, sometimes, in the past, the issue of merit got lost there." He believes the Maryland bar is sufficiently diverse to provide diverse candidates.

Lawyers across the state say they agree with the changes to the nominating commissions that Ehrlich is considering.

Elizabeth L. Julian, who heads Baltimore's Office of the Public Defender, said lawyers are best suited to gauge whether an applicant has the character needed to referee the combat that is trial court.

"As prosecutors," said Leonard C. Collins Jr., Charles County state's attorney and president of the Maryland State's Attorneys Association, "we want nominees who bring trial experience to the bench."

"The process became more political under the Glendening administration," he added, "and we would welcome a pledge to lessen the role of politics."

Some lawyers and judges complain that Glendening, in an effort to diversify the bench, sometimes sacrificed quality, that he appointed some people with virtually no courtroom experience, or unfairly favored candidates from Prince George's County, where he had been county executive.

Glendening made no secret of his political goal: to appoint more women and minorities. From 1995 through Nov. 15, the bench - although still dominated by white men - gained 72 women, 33 African-Americans, three Hispanics, two Asian- Americans and one openly gay judge.

About 90 percent of his appointees were Democrats.

In 2000, when a Baltimore County nominating commission provided a list of nominees that Glendening considered to have too few women and minorities, the governor wrote a stinging letter to commission members telling them the list was "unacceptable."

The sole woman on that list was Sally C. Chester, a Baltimore County public defender since 1986. Chester has been on the nominating commission's list for 10 years but has never been appointed.

She also happens to be a Republican who is close to former Rep. Helen Delich Bentley. While no one in the appointment process explicitly asks about voter registration, in a small state like Maryland, "people know," she said.

Chester doesn't know whether her politics ruined her chances with Glendening, "but I'm positive it didn't help," she said. "All I can say is, I hope that Governor Ehrlich will consider me."

Copyright © 2021, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad

You've reached your monthly free article limit.

Get Unlimited Digital Access

4 weeks for only 99¢
Subscribe Now

Cancel Anytime

Already have digital access? Log in

Log out

Print subscriber? Activate digital access