The Shoe Pinches When It's on the Other Foot

June 15, 1991|By GARLAND L. THOMPSON

In politics, somebody always loses when someone else wins Why then is it ''mainstream politics'' when whites are the winners, even anti-civil-rights crusaders like Ronald Reagan, but divisive'' when the winners are black?

A recent letter by Baltimore Circuit Court Chief Judge Robert I. H. Hammerman about the successful lobbying of black colleagues to get Judge Andre Davis elected to the executive committee of the Maryland Judicial Conference provides a case in point.

Judge Hammerman, a supporter of Judge Marvin Steinberg for the position, wrote that he was saddened that blacks had banded together to promote one of their number to a position no black judge had ever held. That's a curious attitude, 37 years after the end of legal segregation in America, since it is clear that without such banding together the time when a black Marylander might occupy this high judicial post would still be far in the future.

Lest we forget, while the American judicial system is designed to insulate legal decision-makers from the seductions and conflicts political influence, that does not mean politics has no effect at all. Victors at the gubernatorial polls get to name almost all the state judges, despite an electoral system which allows an occasional outsider to step up to the bench, just as victors at the presidential polls name all the judges to the federal bench.

Baltimore's black population has stoutly refused to support an appointments-only bench, regardless of earnest pleas by Governor Schaefer and others to change the system, precisely due to the sidestep past appointive authority that the electoral system allows.

That's because blacks have historically not received appointments to judgeships in anything near their proportion of Maryland's people. Moreover, missteps like Governor Schaefer's bypassing of District Court Judge Paul A. Smith for a seat on the Circuit Court bench until Judge Smith forced the issue at the polls give blacks little reason to change their view.

The governor corrected his oversight last year by moving Judge Smith up after he ran second in a Democratic primary against three white incumbent judges, but by that time unfortunate rhetoric had made the public rounds blaming black lawmakers and judges for ''racial politics.'' Reports by the legal newspaper The Daily Record showed that Mr. Schaefer had failed even to keep up with his predecessors in nominating black jurists during his first four years in Annapolis, but that did not prevent attempts to cast the story as one in which ''divisive'' black tactics had to be thwarted.

The real divisiveness is the tendency of far too many whites to assume that things as they are equal things as they should be, with little consideration given to the bitter reality of long-term bad effects of past exclusions.

Judge Hammerman's four-page letter acknowledged that Judge Davis is well qualified for the judicial executive committee -- after stints as a University of Maryland law professor, clerk to the U.S. District Court and the Fourth Circuit Court of Appeals and service on the Maryland Judicial Institute, the state's judicial training arm, and the city's District Court, qualifications could not be an issue -- but lamented the ''clique'' which pushed for him.

Judge Hammerman further noted that blacks hold some important posts. Judge Clifton Gordy is the Baltimore circuit's representative to the Conference of Circuit Judges, Judge Kenneth Johnson is chairman of the local circuit's Budget and Personnel Committee and two blacks sit on the five-person Management Committee, and Governor Schaefer did elevate Judge Robert Bell to the Court of Appeals.

But Judge Hammerman neatly misses the point. For every advance his letter cites, dissenters among the ''clique'' he excoriates can show doors still closed, posts blacks have never held. Moreover, dissatisfaction with the low rate of black ascension to the bench and to decision-making positions within the judiciary cannot be dismissed by citing a few advances.

Working within the system, quietly lobbying sympathetic colleagues rather than agitating loudly for change, is urged on blacks all the time. The lobbying by Judge Davis' black colleagues thus appears to be an entirely praiseworthy demonstration of sensitivity for the need to maintain good working relations, not an aberration to be attacked.

Even if, like Judge Hammerman and his friend, that means someone must come out on the losing side.

Garland L. Thompson writes editorials for The Sun.

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