The Maryland Daily Record follows up on an interesting story that I first saw in an editorial in the Washington Post back in August. Unlike the U.S. Supreme Court, Maryland Court of Appeals judges have a mandatory retirement age of 70. Three judges – Dale R. Cathell, Irma S. Raker, and Alan M. Wilner – will retire during the next governor’s term. This means that approximately 43% of the court will change by the next governor. [2017 Note: these judges left but they never really left. They still sit on the court as frequent replacements, probably something I should have considered more when I wrote this. Oh to be a young court watcher!]
Also unlike the Supreme Court, the Maryland Court of Appeals has been generally free of vitriolic ideological warfare that has long defined the Supreme Court in the modern era. This is probably most attributable to the fact that the issues a state court faces do not typically radiate core political beliefs and values the way Supreme Court decisions so often do.
Still, it is impossible to deny that judges nominated by either Baltimore City Mayor Martin O’Malley, or Montgomery County Executive Douglas M. Duncan will select judges that are generally expected to be more likely (I’m trying hard to qualify this statement, as you can see) to chose personal injury victims over insurance companies than judges selected by Governor Robert L. Ehrlich Jr.
The court did not change a ton. Practically, nothing big has changed that we can clearly attribute to the makeup of the court. Ultimately, we still have contributory negligence, no dram shop laws, caps on non-economic damages and a bunch of other things I hoped back in 2006 would go away with eight years of a Democrat in the State House in Annapolis. But there has been a SLOW turning of the tide. There have been some great dissents written on these cases that never would have been written years ago. We are making progress that can’t be measured by results just yet. I don’t think the judges chosen have made a great difference. I think society is moving in a different direction on some of these issues that have opposed victims over the years.
To the Governor’s credit, he has done an amazing job of selecting judges based on their ability as opposed to ideological or political reasons. We have not had a president I can remember who you could say the same thing about when it comes to selecting Supreme Court justices. I’m comparing apples to oranges a little bit — the Supreme Court is 100% more politically charged than the Maryland high court — but it is still a good accomplishment.
That said, we could also create legislative solutions to these problems but the Governor has not really jumped behind any of these bills. I think O’Malley has been a solid governor across the board. I voted for him for reelection because there are lot of issues I care a lot more about than just our civil justice system. And, oh yeah, he was up against Ehrlich who certainly would have been worse. But let’s be honest: he has paid a lot of lip service to and snagged a lot of money from trial lawyers but has not really stuck his neck out for them politically.
This is the smart play not just for O’Malley but for all left of center governors. The trial lawyers are your natural allies so you curry favor with them. But there is not a lot of political capital to be earned by supporting the rights of innocent victims who are getting trampled by the system because everyone views it as just something.
The court is still pretty unchanged. Last year, Governor Hogan elevated his his chief legislative officer. Joseph M. Getty, to the Maryland Court of Appeals. There was some concern because Judge Getty was never a trial lawyer or a judge. It was certainly more of a political move than we have seen in Maryland high court nominations. But Judge Getty’s appointment has been largely well received and there have been no major 4-3 votes involving this judge that impact personal injury lawyers.