Associate Judge Harry A. Cole retires next month from the Court of Appeals, Maryland's highest court. Judge Cole is the only black on the seven-judge court. The black community wants him replaced with a black. So, in fact, should the whole state. Diversity is important on a court that sits, deliberates and decides as a group.
We assume Gov. William Donald Schaefer wants to nominate a black to the Court of Appeals. He has a good record in this area. In recent weeks he has named three blacks to the circuit courts in Baltimore City and Prince George's County and another to the Court of Special Appeals, an important intermediate level of the judiciary between the circuit courts and the Court of Appeals.
But there is a problem. The only black candidate for the Cole vacancy so far is Judge Robert M. Bell of the Court of Special Appeals. His assets are balanced by his liabilities. The former are: a Harvard Law degree, practice in the prestigious Baltimore firm of Piper & Marbury, and a distinguished 16-year career as a judge. The latter are: the governor doesn't like him, and, apparently, also doesn't like the fact some black political leaders in Baltimore have indicated they believe not only that the appointee must be black but also that he must be Judge Bell.
You cannot take politics and personalities out of judicial appointments. While Judge Bell and his advocates think it would be unfortunate and unfair for the governor to choose someone else, that's the way the system works. In giving the governor the responsibility to appoint appellate judges, the state Constitution in essence gives him the prerogative to reward those he likes (assuming they are qualified) and not reward those he doesn't. To the victor belongs the spoils system.
We hope this conflict can be quickly resolved without lingering animosity. The governor is going to need the support of the city's black legislators in his term ahead -- and the city surely will need the support of the governor. Our view is, the nominee should be a black, and should be the governor's choice.