Whoever is elected governor in November will have an unusual opportunity to quickly shape Maryland's highest court because of the mandatory retirement of three of the seven judges in the first 18 months of the next gubernatorial term, raising the possibility of divisive fights over judicial nominations.
The issue has already entered the political fray, with Gov. Robert L. Ehrlich Jr. reminding voters during this week's debate on a gay marriage ban that the state's chief executive appoints members of the Court of Appeals. If re-elected, he said, he would appoint judges who share his "philosophical orientation."
Democrats shot back that he was threatening to employ a right-wing litmus test for nominees.
Starting next January, three of the court's seven judges will reach age 70, the mandatory age for retirement, over a period of a year and a half. The three - Alan M. Wilner, Dale R. Cathell and Irma S. Raker - are considered among the most conservative members of the court.
That opens the door for the next governor to leave an imprint on the court, which serves as the state's highest court and faces issues as diverse as the death penalty and the terms of payment of legal fees by the estate of a dead person.
Members of the Maryland court must be approved by a majority of the state Senate. Appointments have not traditionally resulted in battles between Democratic governors and majority-Democratic legislatures, or even wedge issues in gubernatorial campaigns. Ehrlich's sole appointee to the Court of Appeals, Clayton Greene Jr., was easily confirmed.
But with a controversial ruling by a city Circuit Court judge in favor of gay marriage likely on its way to the Court of Appeals, the body is under a bright spotlight just as Maryland's first Republican governor in a generation gears up for a re-election campaign.
Judicial nominations were a major part of the 2004 presidential campaign, with President Bush promising to stamp out activism on the federal bench and Sen. John Kerry warning that a Bush win would spell the end of affirmative action and abortion rights. Bush's picks to fill two seats on the U.S. Supreme Court led to public campaigns of support and opposition.
The Maryland judiciary came up in comments Ehrlich made this week on WBAL radio.
"The people need to understand that the executive appoints judges, and a particular philosophical orientation is going to be reflected in a governor's judicial selections," Ehrlich said. "My judges certainly reflect my philosophical orientation."
He noted that M. Brooke Murdock, the Baltimore Circuit Court judge who ruled that gay marriage should be allowed, was appointed by Parris N. Glendening.
Democrats said Ehrlich's promise politicizes nominations.
"Whenever you talk about judicial nominations in this way, that's virtual code to the right wing that you're going to support nominees in the Clarence Thomas, Antonin Scalia, Samuel Alito mode," said Maryland Democratic Party Executive Director Derek Walker. "It's a warm, wet kiss to the right wing."
Ehrlich spokeswoman Shareese N. DeLeaver said the governor always looks for the most qualified judicial nominees available who share his mainstream philosophical orientation. She declined to elaborate.
The three judges who will retire the soonest are among the most conservative on the top bench, said C. Christopher Brown, who has analyzed split decisions by the court. He teaches law at the University of Maryland and is in a law practice in Baltimore.
"Those judges leaving tend to be far more conservative than the judges staying," he said.
By Brown's analysis of a group of 2005 decisions, Greene, the only Court of Appeals judge chosen by Ehrlich, was the second-most liberal on that bench.
The conservative viewpoints have a slight edge on the court now, Brown said. "That advantage, I guess, could be lost if these new appointees are not equally conservative," he said. "Whatever they are, they are going to have an impact on the future of the court."
'Politics is relevant'
By law, their replacements must come from the same geographic area.
"This is the first time [in years] there is a two-party system in state government. Now, politics is relevant," said Byron Warnken, a University of Baltimore law professor.
Senators from both parties on the Executive Nominations Committee, which holds confirmation hearings on judges, said they could not recall gubernatorial candidates raising nominations as an election issue, nor could they recall a judge's philosophy or stance on particular issues coming under intense Senate scrutiny.
"There have been no major issues about the appointments, but this takes on a whole new meaning once some of these issues will obviously be decided by the Court of Appeals," said Sen. Philip C. Jimeno, the Anne Arundel County Democrat who chairs the committee. "You've got the death penalty, you've got same-sex marriage, possibly some abortion issues, partial birth. Things can change."
Sen. J. Lowell Stoltzfus, the Senate minority leader from the Eastern Shore, said Murdock's ruling has shaken many people who had previously given little thought to the state judiciary.
He said people now see state judges as "little legislators" trying to make law from the bench contrary to the popular will.
A January 2005 Sun poll found 50 percent of likely voters opposed civil unions and 40 percent supported them. How the issue is decided by the Court of Appeals could have a strong impact on the future of the judiciary because Marylanders have long believed that adherence to traditional marriage was a settled question, Stoltzfus said.
"If that perception is altered by a judge, I think there is going to be much more scrutiny, no question," Stoltzfus said.
Senators with widely varying political philosophies said it would be a shame if judicial nominations started to mimic the divisive battles that play out on the national stage.
"I support the idea of an even judicial temperament, so that a person being appointed to the Court of Appeals is someone who is not going to legislate from the bench," said Sen. Andrew P. Harris, the Senate minority whip from Baltimore County. "But going beyond that on specific issues I don't think is appropriate. I hope the candidates for governor agree."
Sen. Brian E. Frosh, a Montgomery County Democrat, said the governor's comments this week indicate that he is ready to cross the line into politicizing nominations.
A spokeswoman for Montgomery County Executive Douglas M. Duncan, a Democrat seeking to challenge the governor, said he would not demand judges agree with him on particular issues.
A spokesman for Baltimore Mayor Martin O'Malley, also running for governor, said he would look for independent judges.
The Maryland Court of Appeals is widely seen as among the more liberal state courts, thought it has become more conservative in recent years, said Warnken, of the University of Baltimore.
"No one has been molding the court. Governor Glendening found that out with the redistricting, didn't he?" said Herbert C. Smith, a professor of political science at McDaniel College in Westminster. The entirely Democratic-appointed Court of Appeals in 2002 erased much of Glendening's legislative map.