By: Steve Lash

Can the Maryland Judiciary serve as a useful model for the U.S. Supreme Court?

Sen. Patrick J. Leahy, D-Vt., seems to think so.

Leahy, who chairs the Senate Judiciary Committee, has said he might introduce legislation to enable retired justices to sit in on cases when a current justice has recused himself or herself. Sound familiar?

In Maryland, retired judges regularly sit in by special assignment for their recused brethren and sistren without much complaint from the bench or bar. If, say, Court of Appeals Judge Sally D. Adkins must recuse herself, the high court can turn to retired Judge John C. Eldridge to take her place, thus preserving its full complement of seven judges to hear the case.

Similarly, Leahy’s yet-to-be-introduced proposal would enable the Supreme Court to field its full complement of nine justices in the dozen pending cases in which new Justice Elena Kagan has said she will not participate. Kagan said she must recuse herself because she worked on those cases in the lower courts in her last job as U.S. solicitor general.

To pinch-sit for Kagan, the Supreme Court could turn to its retirees, Sandra Day O’Connor, David H. Souter and John Paul Stevens, under the Leahy plan.

“If there  is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it,” the senator told The Washington Post.

But there is perhaps a strong argument for preserving the status quo with regard to the Supreme Court and its Maryland counterpart.

O’Connor, Souter and Stevens held lifetime appointments to the bench. Thus, they voluntarily doffed their robes by retiring and, arguably, should not be permitted to don them on a part-time basis.

In Maryland, by contrast, most judges do not retire voluntarily so much as have retirement thrust upon them by the state constitution after reaching age 70. The least the state can do after sending these judges fishing is to reel them back in on occasion, the argument goes.

What do you think of the Leahy plan?