While the percentage of minority judges nationwide remained stagnant in the last decade, Maryland bucked the trend.
According to figures from the Maryland Judiciary, as of July 1 nearly 23 percent of all state judges were minority members. That’s an increase of more than five percentage points since January 2000, and eight percentage points above the reported national average.
While it’s still not on par with the overall population of the state — census figures show 29.4 percent of the population is black, 8.2 percent Hispanic or Latino and 5.5 percent Asian — many in the legal profession think the state has done a good job of becoming more inclusive of different races and bringing more women to the bench.
Of the state’s 274 judges, 99 are women.
“Virginia Slims said ‘You’ve come a long way, baby,’ and we have. Is there more to go? Yeah,” said Court of Appeals Judge Lynne A. Battaglia.
“I think the pool of qualified candidates is growing,” she said. “Maybe the goal should be to not have to worry about who is a woman or who is African-American because there really is diversity.”
On the Court of Appeals, the state’s highest court, there are two black men, three white women and two white men.
“It’s not only visual, but it’s also experiential,” Battaglia said. “All of us bring experiences that are affected by our gender and our ethnic origins. You can’t displace yourself from your history.”
Despite the growth, the state is still making headlines for appointing “firsts” in several categories, and there will be more to come.
Last year the state elevated the first black woman to its intermediate appellate court and the first Hispanic man to any level of the bench statewide.
“We are having firsts and that’s surprising but it’s the reality we’re in here in Maryland,” said Diego Rojas, president of the Maryland Hispanic Bar Association.
“I can’t say I’m dissatisfied,” Rojas said. “I think Governor [Martin] O’Malley has done a good job of appointing judges.”
Since taking office in 2007, O’Malley has appointed 31 women and 40 men. Of those, 23 have been minorities.
At present there are two Hispanic judges on the Maryland District Court and two on the circuit courts, both O’Malley appointees.
There are also two Asian judges on the Maryland District Court who were appointed by O’Malley’s predecessors. However, there are none on the circuit and appellate courts, which is not lost on Eun Kyung “Jeannie” Cho, a Rockville litigator at Hall & Cho PC and chair of the Asian American Bar Committee of the Maryland State Bar Association.
“When you hear a number like zero it’s so surprising,” she said. “One isn’t a great number, but zero is just a stunning figure.”
O’Malley will add another voice to the top court to fill the seat of Judge Joseph F. Murphy Jr., who is retiring at the end of this month. However, the list of applicants, made public Friday, indicates that O’Malley has eight options — one female, one black man and six white males.
Certain jurisdictions lack large minority communities, which makes it harder for minority groups to put forward good judicial candidates. For example, judicial openings on the Eastern Shore or in Western Maryland will not likely draw many high-quality Hispanic candidates, Rojas said.
But where there are good candidates, his group advises them to apply.
“The governor can’t appoint Latinos who haven’t put their hats in the ring,” said Rojas. “That’s why we encourage people to apply and keep trying.”
A seat at the table
According to the Maryland State Bar Association, its membership is made up of 61 percent men and 39 percent women. The association does not track race or ethnicity and, as a voluntary association, does not include all attorneys in the state.
Specialty bar associations, which also do not keep track of racial breakdowns in the bar, play a role in the judicial selection process. Applicants put their names forward and each is invited by local and specialty bar associations to come in for interviews.
Their recommendations are passed on to the Judicial Nominating Commissions, which also interview applicants and pass along their recommendations to the governor, who has the final say.
Syeetah Hampton-El, president of the Monumental City Bar Association, which advocates for the interests of black lawyers in Baltimore and Baltimore County, said nearly all applicants choose to come before her group or its sister organization, the J. Franklyn Bourne Bar Association in Prince George’s County.
She said the Monumental City Bar Association does everything it can to make sure black lawyers “have a seat at the table” in the judicial nomination process by being available for interviews with applicants. She said she thinks the state has made efforts to improve diversity among judges.
“If you look at the accomplishments of the most recent appointments, like Judge Michele Hotten and Shirley Watts on the Court of Special Appeals, we’ve made some strides,” she said. “As with anything there is always room for improvement, but I will say overall there’s definitely diversity on the bench across the board.”
Baltimore City Circuit Court Judge Pamela White, who was appointed by Republican Gov. Robert L. Ehrlich Jr. in January 2007, said she sees growth in diversity ahead as judicial openings arise. Specialty bars will play an important role in that growth, she said.
“It remains vitally important for organizations like the Women’s Bar, Monumental City, the Asian Bar [associations], for those specialty and local bars to weigh in carefully and deliberately on the qualifications of perspective judges, and to encourage, capital E Encourage, good candidates to apply,” she said.
Sandra Yamate, CEO of the year-old Institute for Inclusion in the Legal Profession, which released a report on the demographics of the legal profession in the beginning of September, said the pace of entry into the profession by black people nationwide has slowed.
In the 2008-2009 school year, the most recent for which data is available, black students made up 6.9 percent of law students, compared to 7.5 percent of law students in 2000-2001.
“I think the … decline of African-American enrollment is something the bar across the country has devoted more attention to,” Yamate said. “It’s frustrating to see we haven’t done anything to stop that decline.”
But black students aren’t alone.
“For a number of years [Asian Americans] were the one minority group whose numbers were on an upswing — that’s no longer the case,” Yamate said.
“For the amount of energy and resources we devote to it, it’s outrageous that in a profession of problem solvers we can’t seem to solve the problem,” she added.
Less ethnic and racial diversity of students means less diversity of lawyers, which could eventually translate to fewer judges of varied backgrounds.
According to the report’s data, taken from U.S. Census Bureau data, minority judges made up 15.9 percent of the judiciary in 2000 nationwide, but just 15 percent by 2009.
Black judges made up 8.8 percent of the judiciary in 2000, with 5,155 black judges on the bench. But by 2009, their numbers dipped to 4.8 percent, with 3,504 black judges.
Yamate, who said she was hesitant to provide an explanation, nevertheless offered one possibility.
“If I had to make an educated guess, perhaps many of the earliest African-American judges are now reaching retirement age, and perhaps we have not done as good a job of creating a pipeline of African-American judges to take their place,” she said.
According to a 2008 Brennan Center for Justice report, minority judges often have trouble getting re-elected.
Former Gov. Parris N. Glendening, a Democrat who is credited with encouraging more racial and gender diversity among judges, saw his first black appointment to the Baltimore County Circuit Court, Alexander Wright Jr., defeated in a primary race in 2000.
Glendening appointed Wright again, and again Wright was defeated at the polls. In 2008, O’Malley appointed him to the Court of Special Appeals, where he now serves. Wright has applied for Murphy’s seat on the Court of Appeals.
Battaglia, also a Glendening appointee, said the former governor did a lot for the court system.
“I think a lot of the rich diversity is directly attributable to him,” she said. “He was really looking for qualified candidates.”
When Glendening took office in 1995, there were only 36 female judges out of 240 in the state, according to an article published in the Summer 2009 edition of the American Bar Association Judges’ Journal. (The article was written by Andrea M. Leahy-Fucheck, managing member of Leahy & DeSmet LLC in Calverton, who was the governor’s chief legal counsel during the Glendening administration.) Glendening appointed an additional 53 women and elevated 13 female judges during his time as governor, the article says.
Glendening also more than doubled the number of minority judges on the bench from 29, by adding another 32. He appointed the state’s first Hispanic judge, Audrey Carrion, and the first Asian-Pacific judge, Jeannie Hong.
“It’s not just what [nominating] commissioners do, it’s what the governors do to get diversity on the bench,” said Sheila K. Sachs, who chairs the state’s Appellate Courts Judicial Nomination Commission.
Sachs said the changes started in the 1980s, before Glendening took office.
But one of the key things Glendening did was to change the process for determining who serves on the nominating commissions, giving the executive power to appoint some members.
“In 1989 it was a bunch of white guys on the judicial nominating commissions,” Judge White said. “Ten years later there was significant improvement.”
With the commissions themselves becoming more diverse, and “through training and experience becoming more appreciative of qualifications of applicants,” White said the bench is “only getting better.”
She said the state has come a long way since the gender bias report on Maryland’s court system came out in 1989 and since the court’s Commission on Racial and Ethnicity Fairness in the Judicial Process was formed in 2001.
“Looking only at Maryland, sometimes it’s easy to overlook the good work that we do,” she said. “The important work of the judicial nominating commission, that’s where the rubber meets the road… . I see dramatic improvements and expansions over the years.
“It’s not perfect, but it’s working better all the time,” White said. “You can call me an eternal optimist.”