Gov. Martin O'Malley has a rare opportunity to reshape Maryland's highest court in coming months, making Senate Republicans worry that he will transform it into an activist bench issuing liberal rulings on hot-button social issues.
O'Malley says he will not apply ideological litmus tests to judicial nominees, but three judges he will replace before the midpoint of his term are viewed as some of the court's more conservative members. This week, the Judicial Nominating Commission that O'Malley appointed to vet applicants will give the names of those it considers best-suited to fill the first vacancy on the seven-member Court of Appeals.
Republicans, badly outnumbered in the Senate, would have little chance to derail O'Malley's nominees in confirmation hearings, but they said they are ready to speak out if the governor nominates people they think would force the court too far to the left.
The appointments come at a time when issues such as gay rights and the death penalty are in the fore.
"I think everyone's concerned that the governor will try to put people on the court who bring a liberal activism to the court," said Senate Minority Whip Allan H. Kittleman, a Howard County attorney.
The three judges who have reached or who will soon reach the mandatory retirement age of 70 are among its more moderate- to conservative-leaning members, said C. Christopher Brown, a lawyer in private practice in Baltimore who has argued before the Court of Appeals.
O'Malley "has the ability to pick somebody who would be friendly to his political viewpoints," Brown said.
The Senate must confirm nominees to the Court of Appeals, and Republicans, who hold just 14 of the chamber's 47 seats, don't even have enough members to sustain a filibuster, much less reject a nominee, without significant Democratic help - a virtual impossibility with a Democratic governor.
O'Malley "has the authority to appoint judges on the Court of Appeals whether anybody likes it or not," said Sen. Nancy Jacobs, a Harford County Republican. "That's why it is so important to hold the chief executive position in the state of Maryland."
Senate Minority Leader David R. Brinkley of Frederick County said the state's high court has generally stayed out of the policy realm, but a months-long delay in a ruling on same-sex marriage makes Republicans worry that the trend might be changing.
"Our concern is that the governor appoint well-qualified judges and not people with a certain political slant," Brinkley said.
Two of the judges, Alan M. Wilner from Baltimore County and Dale R. Cathell from the Eastern Shore, retired this year. Irma S. Raker of Montgomery County must retire next spring. By law, their replacements must come from the same areas of the state.
Court watchers say O'Malley's choices could have enduring influence, as much as his administration's budgets or bills.
O'Malley is a death penalty opponent. He said he remains interested in abolishing the death penalty in Maryland by legislation and is not looking for judicial candidates who agree with him on particular issues.
Nor, he said, does he have candidates in mind.
"A good judge in my mind is a judge who is fair, balanced, experienced and capable in the practice and theory of Maryland law. I don't think it's healthy to put them through litmus tests," O'Malley said.
Del. Luiz R.S. Simmons, a Montgomery County Democrat and lawyer, said the court's turnover might have a bigger impact on business issues than on social ones. Consumer standing to sue corporations, interpretations of the law governing damage limits in asbestos cases and the validity of mandatory arbitration clauses in contracts with cable or telephone companies could all be decided by new members of the court, Simmons said.
"There's a sense that the court has drifted a little conservatively on those issues, and the question is what the trajectory of the court will be over the next 10 to 15 years," Simmons said.
Sen. Brian E. Frosh, a Montgomery County Democrat who is chairman of the Judicial Proceedings Committee, said he doesn't imagine the top court will lurch left or right with O'Malley's choices.
"I don't think you can say there are a fixed set of criteria you have to have. It depends on the person and his or her reputation, their ability to get along with their colleagues on the bench or in the bar, and, certainly not least, it depends on politics," he said.
Cathell's vacancy has not been advertised, but four applicants are seeking to fill Wilner's vacancy in the 2nd Appellate Judicial Circuit, which covers Baltimore and Harford counties:
John Anthony Austin, 62, a former assistant Baltimore County government attorney and former assistant attorney general, has a varied private practice in Towson.
Nancy Susanne Forster, 49, is a career appellate public defender who has been head of the statewide public defender's office since 2004.
Robert N. McDonald, 55, has worked for the state attorney general's office since 1989 and has been head of the opinions and advice division since 1998.
Joseph F. Murphy Jr., 65, has been the chief judge of the Court of Special Appeals, the state's intermediate appellate court, since 1996 and was a prosecutor in Baltimore for six years before going into private practice and then serving as a Baltimore County Circuit Court judge.
They will be interviewed in private by the Judicial Nominating Commission, which on Wednesday is to recommend those it finds most qualified. The governor must choose among those.
Byron L. Warnken, a University of Baltimore law professor and attorney in private practice, noted that a candidate's past doesn't guarantee what he or she will do when faced with particular cases or issues.
Elsbeth L. Bothe was the president of the American Civil Liberties Union of Maryland and an assistant public defender before becoming one of Baltimore's toughest Circuit Court judges. On the U.S. Supreme Court, Justice Harry A. Blackmun, appointed by President Richard M. Nixon, was expected to be conservative but quickly drifted toward more liberal views.
In the early months of his failed re-election campaign last year, Republican Gov. Robert L. Ehrlich Jr. vowed to appoint judges who shared his "philosophical orientation," leading Democrats to cry that he was promising a conservative litmus test.
But Ehrlich's sole appointee to the Court of Appeals, Clayton Greene Jr., chosen in 2004, is widely perceived as among the bench's most liberal-minded.
William Reynolds, a University of Maryland law professor, said that while O'Malley has the opportunity to move the court to the left, circumstances make that hard to engineer. Much depends on the judges' personalities, as a particularly persuasive judge can have a strong impact on a small court such as Maryland's, Reynolds said. And much of a court's path depends on the cases it chooses to hear as well as the ones that by law it must hear.
Nor do appointments guarantee a compliant court. Even though Democrats appointed nearly all of the current judges, they have ruled against that party's leaders in several politically charged cases.
The full Court of Appeals had been appointed by Democrats when in 2002 it threw out much of then-Gov. Parris N. Glendening's legislative redistricting map. Then, in 2004, as Democrats claimed a vote for third-party presidential candidate Ralph Nader would effectively be a vote for Republican George W. Bush, the court ordered state elections officials to accept invalidated petition signatures and put Nader on the ballot. And in 2006, the top court canceled five days of early voting favored by Democrats.
For more on state politics, go to baltimoresun.com/politics