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September 8, 2021 | by sloan

Recently retired Chief Judge Mary Ellen Barbera, who spent eight years as a teacher before going to law school, has never stopped learning.

In a recent sit-down with MSBA President M. Natalie McSherry, Judge Barbera’s reverence for lifelong learning was a common thread no matter which way the discussion turned. 

She learned plenty from the families of her early childhood education students in Baltimore’s Cherry Hill neighborhood. “I wanted to learn and get better as a teacher,” she noted, and saw that, no matter the family situation, “some issues are absolutely universal . . . we care about our children.” When her late brother-in-law Tom Barbera, a lawyer, encouraged Judge Barbera to consider a career in law, she learned how to juggle night school with her day job and the challenges of raising two young children, who were ages five and nine at the time. 

Judge Barbera developed an interest in criminal law at a very young age, and intended to practice that specialty upon graduating from law school. This initial plan shifted slightly when just two weeks into her post-school clerkship with “one of [her] heroes” Judge Robert L. Karwacki, Judge Karwacki moved from the Circuit Court of Baltimore City to the Court of Special Appeals, and Judge Barbera went with him. Judge Barbera notes that the clerkship “changed the trajectory of my career, and I’ve never looked back. It has been magnificent.” Although she had anticipated working as a trial lawyer, Judge Barbera subsequently took a job in the criminal appeals division of the Maryland Attorney General’s office.

Again, the theme of learning came up; Chief Judge Barbera counts among her mentors former Maryland Attorney General Stephen H. Sachs and former U.S. District Court Chief Judge Deborah K. Chasanow, who were her colleagues in the criminal appeals division. But the job also offered her real-time education: “Additional learning comes from standing before an appellate court.” And even after her lengthy judicial career that culminated in holding the state’s highest judicial office, Judge Barbera still cringes at some of the more difficult lessons she learned as an appellate attorney, describing an experience when the Court of Special Appeals sat en banc to rehear an argument she had given before a three-judge panel. “Everyone from my division was there” to watch, she explained, and not one of the 13 judges asked her opposing counsel a single question during his argument. Barbera thought “I’m in for it,” and was not surprised when she was peppered with questions by all of the judges, who were not supportive of the state’s position. “The questions were so intense … I tried to do my best … boy did I learn.” Judge Barbera emphasized that “we never forget the hard things … they push us forward not just as better lawyers or better judges but as better people.”

After two unsuccessful bids for a seat on the Court of Special Appeals, followed by a stint in Governor Parris N. Glendening’s legal counsel office, Judge Barbera was appointed–by Glendening–to the bench in 2002, and then elevated to the Court of Appeals by Governor Martin O’Malley in 2008. Five years after that, in 2013, she became Chief Judge of the Court of Appeals, making history as the first female to hold the position. 

President McSherry noted that a female rising to Chief Judge was “no small feat” and, invoking the memory of the late U.S. Supreme Court Justice Ruth Bader Ginsburg, asked Judge Barbera whether eventually having a majority of women on the Court of Appeals made a difference in decision-making. Judge Barbera emphasized that, among the appellate judges, “none of us is doctrinaire,” but noted that “we all come with our jurisprudential positions . . . and how we think about the law.”  But she takes great pride in the diversity of the bench after “hundreds of years of only old, white, men . . . . When the dam broke, it just created a wonderful wave of being both diverse in gender and diverse in color. I am so proud of what our court looks like to the young people that come in.” 

Turning the conversation to the challenges and accomplishments during her tenure, Judge Barbera noted that some of her biggest challenges arose from decisions she had to make as the administrative head of the state judiciary. “We always, always want to take the good and make it better.” She is most proud of building a stronger governance structure, which includes a judicial council that represents not only judges but also elected clerks, court administrators, and other experts to provide advice. 

The challenges that arose because of COVID were among the most difficult that Judge Barbera had to handle as chief judge. President McSherry questioned whether, “with this amazing machine you’ve built on and improved, do you see any positives we can pull from COVID to improve the courts going forward?” Judge Barbera recognized the importance of technology, which helped the judiciary to manage and navigate the last 18 months, but emphasized that the “advancements, changes in approach, all those are good things . . . but none of those would have worked without the people behind them.” Noting that the courts never shut down, not even at the beginning of the pandemic, Judge Barbera credited the “coterie of people” who helped her with the administrative orders required to keep the courts running while prioritizing the safety and health of all involved. “It ends with the people and the good will of the people who make up the judicial branch of our government.”

President McSherry noted that Judge Barbera has long been active in a number of MSBA committees, and asked why. Judge Barbera emphasized the various benefits, ranging from being a young lawyer and having access to professional colleagues that you wouldn’t otherwise meet, to sitting on various committees. Judge Barbera holds a special place in her heart for the MSBA’s Leadership Academy. “They always astound me at the innovative, creative thinking and how they learn not just what we’re going to do but how we are going to get there as a group, which I think is hugely important.” She also served as chair on the criminal law subcommittee for the Maryland Pattern Jury Instructions, work she recalls as “hugely important not just to members of the bar but to our trial judges. That was wonderful work with brilliant people.”

Reflecting on her career, Judge Barbera noted that much work remains toward achieving access to justice; “even with our best efforts we’ve only been able to solve 20% of the folks who really need us. There’s nothing better than a lawyer standing right by your side.” 
Judge Barbera applauded the MSBA’s efforts to attract newer, younger lawyers. Although she declined to provide specifics on her post-retirement plans (which do not include seeking recall to the bench), Judge Barbera assured President McSherry that she is giving more thought to ideas on how to continue serving, and promised to accept invitations to MSBA leadership conferences.