The final year of Robert M. Bell’s tenure as chief judge of Maryland’s top court began Friday, when he turned 69 in a state where the constitution requires jurists to retire at 70.
Thus, the clock has started for Gov. Martin O’Malley to name the first new Court of Appeals chief judge since 1996.
“A year out is not too early at all to be thinking of this [appointment], because others are,” said Parris N. Glendening, the former Maryland governor who appointed Bell chief judge 16 years ago. “Of all the various appointments that I made, that was the one that was most intensely lobbied, discussed.”
The intensity is strong because the opportunity is so rare.
The Court of Appeals has only had two leaders during the past 40 years: Bell and his predecessor, Robert C. Murphy.
By contrast, Maryland has had seven governors during that span, including Acting Gov. Blair Lee III from 1977 to 1979.
Former Maryland Secretary of State John T. Willis, who has written extensively on Maryland politics, said the long tenure of chief judges speaks well of the state’s court system.
“We’ve had a couple of generations of relative stability,” said Willis, who served as secretary from 1995 to 2003. “That’s one of the strengths of the Maryland judiciary.”
O’Malley, through a spokeswoman, declined to comment.
“The governor is fully aware of the age limit and the requirement that a replacement be made, but we don’t discuss the process at this point,” Raquel Guillory said.
Glendending, however, recalled six or seven legal advisers telling him to “look for a slightly younger person” — someone who could serve another 15 to 20 years — when Murphy was nearing his forced-retirement age.
The advisers also pressed for someone with appellate court experience. A judge with a paper trail of opinions is “a known entity” who inspires public confidence, Glendening said.
With those factors as his guide, Glendening chose Bell, who was 53 years old and had been on the Court of Appeals for five years when he became chief on Oct. 23, 1996.
Murphy was even younger, 46, when then-Gov. Marvin Mandel chose him in 1972. Murphy served on the high court for 24 years, until his forced retirement at age 70 on Oct. 9, 1996.
Murphy was a bit of an exception, in that he had never served on the Court of Appeals before being made its chief. Instead, he was serving as chief judge of the Court of Special Appeals.
Of the last 16 chief judges, dating to 1867, only three judges were not on the Court of Appeals when they were named its chief: Murphy; Frederick W. Brune IV, who served from 1954 to 1964; and Simon E. Sobeloff, 1952 to 1954.
And of the three, only Brune was in private practice when then-Gov. Theodore R. McKeldin appointed him chief, based on a review of the Maryland Manual On-Line.
If the combination of age and experience on the top court are deciding factors, the most logical choices would be judges Mary Ellen Barbera, 60; Sally D. Adkins, 62; Clayton Greene Jr., 61; or Robert N. McDonald, 60, said University of Baltimore School of Law professor Byron L. Warnken.
The remaining tenures of the other two sitting judges — Glenn T. Harrell Jr., 67, and Lynne A. Battaglia, 66 — would be too short to make a significant mark, Warnken added.
“A combination of ages and that we have never had a female [chief judge] makes Barbera or Adkins an obvious potential pick,” said Warnken. He added that Greene has the distinction of serving on all four levels of the Maryland judiciary.
McDonald, by contrast, only joined the Court of Appeals in January, and that lack of experience might discourage O’Malley from appointing him, Warnken said.
“McDonald is still the unknown,” he said. “He has been an appellate judge for less than one year.”
O’Malley could also look to the Court of Special Appeals, as Mandel did in appointing Murphy. However, the appointee would have to be from Baltimore, as he or she would be taking Bell’s 6th Appellate Circuit seat on the high court.
That residency requirement would exclude Court of Special Appeals Chief Judge Peter Krauser, who hails from Prince George’s County, but not judges Albert J. Matricciani Jr., 65; Shirley M. Watts, 53; or Samuel R. Berger, also 53.
O’Malley could also decide to pull a McKeldin — that is, to buck tradition by appointing someone from private practice, such as his former chief counsel, Ralph S. Tyler, 65.
After 14 years in the attorney general’s office, Tyler went to Hogan & Hartson LLP (now Hogan Lovells) in 1996. He left his partnership at the firm in 2004 to become Baltimore city solicitor during then-Mayor O’Malley’s administration. He also served as executive director of Gov.-elect O’Malley’s transition team in 2006 and 2007, became his chief legal counsel and later Maryland insurance commissioner.
In 2010, Tyler left the commission to serve as chief counsel of the U.S. Food and Drug Administration. He joined Venable LLP in Baltimore last November.
Tyler declined to comment on Friday.
Law professor Larry S. Gibson said O’Malley should focus on all three aspects of the job.
In addition to judging cases, the chief is the “spokesperson for the judiciary.” Having spent time as a trial judge gives that person “credibility” when speaking of or to lower court judges, added Gibson, of counsel to Shapiro, Sher Guinot & Sandler and a professor at the University of Maryland Francis King Carey School of Law.
Like Warnken, both Bell and Greene have served on all four levels of the Maryland judiciary, Gibson noted. (Adkins, too, has served on the circuit court; Barbera and McDonald have not.)
The chief must also have strong administrative skills, Gibson said. The job includes managing the Maryland judiciary, an agency with a $447 million budget and 4,030 employees this fiscal year.
“The most important part of the job is managing the court system,” Gibson said. “There’s no such thing as an assistant chief judge. He [Bell] is it.”
Whoever O’Malley may choose, he will certainly be lobbied vociferously in the next year, said Glendening.
The former governor recalled his legal advisers warning him to “watch out” for the appointment of chief judge.
“‘It’s going to be emotional for some people,’” Glendening remembered them saying. “‘It’s going to be intense.’”
And it was.
Glendening was buttonholed by friends and advocates of sitting judges, political interest groups, organizations with regular business before the high court, and bar associations across the state, he said.
“Every judge who is … not 69 years old is thinking about that,” Glendening said of the pending chief judge vacancy. “I do not remember any direct lobbying [from judges], but they all have friends, advocates.”
Leaders of the black community were “very explicit” about wanting Glendening to name the first black chief judge, he said. Business groups sought a chief judge who was “business-oriented and conservative,” he added.
The intense interest in the pending appointment — including from the press — led Glendening to meet with Bell in Carroll County, away from the glare of Annapolis and Baltimore, where the Court of Appeals judge lived and would certainly have been recognized. Glendening said he did not know Bell well before that meeting but left the session impressed.
“I was very, very comfortable in making that appointment,” Glendening said.
Glendening’s advisers included his chief counsel, Andrea Leahy-Fucheck, who said her job was to ensure that the governor received “balanced information” about all the judicial candidates amid all the individuals and groups pressing their own favorites.
“Your job [as an adviser] is to be very aware of the pressures that the governor is receiving and balance it out,” said Leahy-Fucheck, of Leahy & DeSmet LLC in Calverton. “It’s very important to make sure that the governor gets all the information.”
That information includes a review of the candidate’s opinions and other writings, as well as his or her involvement in the community, she said.
O’Malley enters the process with more experience than Glendening had.
Bell marked Glendening’s first appointment to the Court of Appeals. Bell’s successor, meanwhile, will be O’Malley’s fourth appointment to the high court and is likely to be his last. None of the other judges will turn 70 before O’Malley’s term expires in January 2015.
O’Malley, unlike Glendening, will also have no need to concern himself with the effect his choice might have on his chance to be re-elected as governor. Glendening was in his first term as governor when he chose Bell; O’Malley is in his second term and is legally barred from running for a third.
“Being a second-term governor, [O’Malley] doesn’t have to think of the electoral consequences of his decision,” said Willis, who teaches at the University of Baltimore’s School of Public Policy.
Though widely believed to have his sights set on higher office — including the presidency — O’Malley will remain focused on what is best for Maryland and his historical legacy and less on how the appointment would play politically, Willis said.
“I’m not saying politics doesn’t enter into the decision; I know better than that,” he said.
But “this person is going to be associated with you, whether you like it or not,” Willis added. “You want to look back 10 years from now and say that was a good appointment.”