Maryland Court of Appeals: Filling Judge Raker’s Vacancy

The Maryland Daily Record reports today that four judges and one lawyer have applied for the vacancy created on the Maryland Court of Appeals by Judge Irma S. Raker’s reaching retirement age.

Judge Raker sits from the 7th Appellate Circuit, which covers Montgomery County. Accordingly, her replacement must also come from Montgomery County. The judge applicants are Maryland Court of Special Appeals Judges Mary Ellen Barbera and Patrick L. Woodward, Montgomery County Circuit Court Judges Michael D. Mason, and Chung K. Pak, a U.S. administrative patent judge and Maryland Higher Education Commissioner. William J. Chen, Jr. of Chen, Walsh, Tecler & McCabe in Rockville is the only lawyer on the list. I guess the correct term would be non-judge since every judge in Maryland is a lawyer. (Interestingly, I’m not sure what the Maryland Court of Appeals eligibility requirements are, but you need not be a lawyer to sit on the United States Supreme Court.)

Judge Raker will be the third Court of Appeals judge to reach retirement age. A long time ago, I wrote that the most lasting impact of the O’Malley-Ehrlich election might be the selection of the Maryland Court of Appeals judges. Governor O’Malley’s last choice replaced a conservative judge – arguably the most conservative judge on the Court – Alan M. Wilner, with Judge Joseph F. Murphy, Jr. No one is talking about it, but this alone is a major shift in the political bent that will affect the Court for the next seven years. Judge Raker’s replacement will be a bit less of an impact because she is more moderate than Judge Wilner, but a moderate to liberal swing, coupled with Judge Murphy, could have a real impact. O’Malley will get yet another chance to make an imprint on the Court when he announces a replacement for Judge Dale R. Cathell, who retired last July.

For personal injury and medical malpractice lawyers in Maryland, a shift in the Court will probably not have a great impact. Under a best-case scenario, the Court would eliminate caps on economic damages, perhaps evolving theories like the fact there is new evidence that caps on damages are sexually discriminative. But I do not think this is in store for the near future. A more liberal Maryland court could abolish contributory negligence but this is also probably pie-in-the-sky given the Maryland legislature’s attention to the issue (even I don’t think it would be appropriate, honestly).

One weakness inherent in Judge Murphy’s selection (putting those nine words together will shock anyone who followed the lovefest after he was selected) is that as impressive a jurist as he is, he will only have seven years on the Court before mandatory retirement at seventy. Assuming greater wisdom does not prevail and seventy remains the mandatory retirement age, O’Malley might want more of a legacy selection a la George Bush in nominating John Roberts. Here, he will probably go with Judge Barbera, who I think is the youngest of the candidates, probably by at least five years (although I have little information on Judge Pak).