- The Washington Times - Sunday, January 21, 2007

ANNAPOLIS — Forget the State House and governor’s mansion — Maryland’s return to a Democratic administration with Gov. Martin O’Malley could have the biggest effects down the road on the state’s highest court.

Mr. O’Malley will nominate at least three of seven judges on the Maryland Court of Appeals over the next 14 months because of the court’s mandatory retirement age of 70. The openings mean that Mr. O’Malley will have greater say than recent governors on who gets to decide high-profile questions.

“The change of three is likely to have a profound impact,” said William Reynolds, a University of Maryland law professor.

The stakes are high. The court last year narrowly upheld the death sentence for Vernon Evans, convicted of two 1983 killings. The author of that 4-3 decision was Judge Alan M. Wilner, who retires at the end of the month.

The other retiring judges are Dale R. Cathell, who leaves in July, and Irma S. Raker, who turns 70 next spring. Add any unexpected openings, and Mr. O’Malley could place a majority on the state’s highest court. His predecessor, Republican Gov. Robert L. Ehrlich Jr., appointed one.

Lawyers and legislators say Mr. O’Malley’s court appointments could have as much influence on the state as the bills Mr. O’Malley backs or the state budgets he writes.

“The Court of Appeals dictates the law in Maryland,” said Delegate Joseph F. Vallario Jr., chairman of the House Judiciary Committee. “Very few cases go to the [U.S.] Supreme Court. This is it. It’s a very tough job.”

Mr. O’Malley’s picks could determine whether Maryland ever puts to death another inmate. Judge Cathell is a death-penalty supporter, like Judge Wilner, but Judge Raker considers the death penalty unconstitutional.

Just last month, the Court of Appeals put on hold Evans’ execution because the state legislature didn’t properly review the lethal-injection procedure. If Judge Wilner or Judge Cathell were replaced by a death-penalty opponent, it’s possible that the Court of Appeals could end the practice in Maryland.

Mr. O’Malley, a lawyer himself, has said he opposes the death penalty. But he hasn’t elaborated on whether he would only appoint judges who opposed it.

More and more, the high court is taking up politically charged questions. The court has heard, but not yet decided, a same-sex “marriage” case. The court will have to decide whether to throw out a ruling by a Baltimore judge that the state should allow same-sex “marriages.”

The court also served as an important check over the last four years for Republicans who wanted to stop laws passed by the Democratic legislature.

The Court of Appeals threw out a law setting up early voting; judges said the state constitution says elections are held on a Tuesday in November and that the date can’t be changed. The court also intervened when lawmakers fired the utility-regulating Public Service Commission. Both those laws were passed over Mr. Ehrlich’s veto.

Mr. O’Malley’s aides wouldn’t say whether the new governor has any ideas for who to put on the court.

“It’ll be a very deliberative process,” said O’Malley spokesman Rick Abbruzzese. Court appointments, he said, are “something the governor will take very, very seriously,” but he wouldn’t say whether Mr. O’Malley would look for anti-death penalty jurists or what criteria are on Mr. O’Malley’s list.

The advice Mr. O’Malley is getting is similarly vague. Several said the main thing is to pick a smart judge who knows the law, because once they’re on the bench, judges tend to be independent. Court of Appeals judges don’t have to face voters for 10 years, and their re-elections are almost certain.

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