THE CHICKEN-and-egg argument in legal circles about why the number of blacks appointed to the state's judiciary has gone down under Gov. William Donald Schaefer can only be resolved by a push from the top. And notwithstanding the aplomb with which Mr. Schaefer defused a brewing rebellion over the candidacy of District Court Judge Paul A. Smith for the Baltimore Circuit Court, the pending retirement of Court of Appeals Judge Harry A. Cole brings the issue squarely into the governor's front yard.
Here's the background: Noticing the unrest among blacks, the legal newspaper The Daily Record compared Mr. Schaefer's appointments to those of Harry Hughes. It found that 22 percent of Mr. Schaefer's judicial appointments were either minorities or women during his first term. During Mr. Hughes' first four years, 33 percent of the judges named were blacks or women.
Overall, 28 percent of Mr. Hughes' nominations to the bench were blacks or women. Of the times Mr. Schaefer found blacks on the finalists' list after consideration by judicial nominating commissions, the legal paper said, he named 29 percent of them to the bench.
That sounds good, but here's the bottleneck. In some areas, no blacks were on the commissions' lists. Mr. Schaefer's supporters say that vindicates him, since he raised the number of blacks and women on the panels. But that's among lay members. Lawyers on the panels have a much greater chance of swaying opinions, and the lawyers are elected from the professional bar, a notoriously white-dominated group. It should surprise no one that only one black lawyer has made it onto a selecting panel, in Baltimore.
Mr. Schaefer's appointment of Judge Smith and Judge Andre Davis to the Circuit Court surprised and pleased many black lawyers. But the Court of Appeals raises another level of apprehension. That's because Judge Cole, in a seat normally tagged for Baltimore, is the first black ever to sit on the state's highest court. Five people applied for the job, among them Court of Special Appeals Judge Robert M. Bell, described by black lawyers and legislative leaders as brilliant.
Judge Bell, a Morgan State and Harvard Law graduate from East Baltimore, is often discussed as a role model for the youth and a shaper of compassionate, well-grounded judicial opinions. Blacks are often accused of splintering along parochial, narrow-interest lines, but here their opinions are unanimous: He's the choice.
Mr. Schaefer may have other thoughts, though. Word has just gone out that he has reopened the applications period for the Court of Appeals seat. What that means is anybody's guess, but in judicial appointments for county benches, Mr. Schaefer has been known to send nominating lists back several times if he didn't like the selection.
Not liking Judge Bell and choosing someone else for the only black-held seat ever in the history of the Court of Appeals is likely to cause continuing problems for Mr. Schaefer in this case, however.
That's because, barring unforeseen circumstances, Mr. Schaefer won't have another Court of Appeals appointment during his tenure. None of the court's other members will reach the mandatory retirement age before 1995. Either a black jurist takes Judge Cole's seat now, continuing a long push for diversity, or the opportunity may not arise until the next century.
That's a lot of heat to put on a single judgeship, but this is the highest court in a state whose population is one-quarter minority. And those who question the intensity of ''racial politics'' should note Roger Wilkins' rebuttal of claims that it's a black-only phenomenon. Mr. Wilkins, a George Mason University history professor, wrote in a Dec. 5 Washington Post column that discrimination is woven throughout the skein of American development:
''Maybe there will come a century when it is not so, but right now, America can no more cease inflicting racial damage on blacks than a hurricane can stop blowing down houses. And to ask blacks to give up the effort of trying to devise ways to defeat it is a little like asking us to step out on to the beach to have a word with Hugo.''
The message is clear for Mr. Schaefer, who is troubled over the difficulties of persuading blacks to abandon support for popular election of lower court judges. Passing over highly qualified blacks when they have paid their dues will resound in turmoil further down the line. That's a message Mr. Schaefer may ignore, but it will cost him.