Many people have been following the nomination of Brett Kavanaugh to the Supreme Court with keen interest, as well they should. Voters understand the Kavanaugh appointment provides conservatives with the majority vote that could reverse prior constitutional rulings and undermine people’s fundamental rights. Most recognize that Donald Trump’s ability to appoint future Supreme Court and lower court judges is one of the lasting consequences of the 2016 election.
Maryland voters should be equally concerned with the effect that this year’s race between Gov. Larry Hogan and Democrat Ben Jealous will have on reshaping our state’s highest court, the Court of Appeals, and therefore on Maryland’s future. The next governor will likely replace five of the court’s seven judges within the next term in office. While the affable Mr. Hogan is no Donald Trump, his appointees are unlikely to look out for the interests of all Marylanders, and they deserve our closest attention.
Mr. Hogan surprised the legal community and dismayed many in 2016 when he filled the last court vacancy with his chief legislative lobbyist, Joseph Getty. Mr. Getty, a strong conservative as a legislator with no prior judicial or significant legal experience, had spent most of his professional life in Republican politics.
Currently, there’s one vacancy on the Court of Appeals, prompted by the upcoming retirement of Judge Sally D. Atkins, scheduled for Oct. 31. That vacancy, by itself, may shift the balance of power and provide the crucial swing vote in future 4-3 rulings. An open seat on Maryland’s most influential court should attract the best and the brightest lawyers with a proven record of excellence in practice or as a judge, and a proven record of embracing equal and impartial justice.
Four more judges (Judges Barbera, Green, McDonald and Getty) are scheduled to retire by 2023, once each reaches the mandatory retirement age of 70. That unusual turnover provides the opportunity for Mr. Hogan or Mr. Jealous to select an entirely new court, one that will define Maryland’s Court of Appeals rulings for decades to come.
The Court of Appeals often decides cases of great importance to the people of Maryland. In coming years, that could include issues such as voting and gerrymandering, executive power and criminal justice reform. These cases often pit the most vulnerable — people who are elderly, young, disabled, indigent, low-income, of color, immigrants or LGBTQ — against powerful corporate and government interests.
Critically, the court could very well rule on issues of women's reproductive choice under the state constitution, if a Kavanaugh Supreme Court overrules Roe v. Wade.
Which candidate is most likely to appoint judges who will defend the least powerful among us without being beholden to money interests?
Democratic candidate Ben Jealous’ previous experience — as president of the NAACP, an investor in urban neighborhoods and a university teacher seeking to make college available to the young and economically disadvantaged — suggests that he is far more likely to select judges who understand and empathize with most people’s pressing needs.
Mr. Hogan’s record, by contrast, raises deep concerns on this score. He has cut or provided inadequate funding for transportation, education and medical services, and he has close ties to business and conservative circles.
I know first-hand the difference a high court’s composition makes to people with few financial resources, who struggled for years to gain legal representation at bail hearings and to avoid incarceration because they lacked bail money or funds to pay bondsmen’s non-refundable 10 percent fee.
The high stakes in Maryland’s gubernatorial election explain the outpouring of outside “dark money” and attack ads from the Republican Governors Association immediately after Mr. Jealous won the Democratic primary. These anonymous donors infiltrate far too many of America’s elections. Their attack on Mr. Jealous is also an attack on the many people for whom Mr. Jealous speaks, including those who need judicial protection when facing eviction and home foreclosure, inferior public schools, low-paying jobs, inadequate health care and unequal, discriminatory justice.
This governor’s race is critical to Maryland’s future. Maryland’s Democratic leaders cannot remain on the sidelines by acting neutral, disinterested or worse. The question is not whether Maryland will have a Democratic court or a Republican court. The question is whether we will have a court that reflects the values and ideals of the people of Maryland.
As governor, Ben Jealous will appoint the judges that our state deserves and our people need.
Doug Colbert is a professor at the University of Maryland Francis Carey King School of law. His email is DCcolbert@law.umaryland.edu.