Warning shot fired by Md. senators

Possible nominee for 4th Circuit lacks state ties, they say

Bush might reconsider

May 05, 2001|By Karen Hosler | Karen Hosler,SUN NATIONAL STAFF

WASHINGTON - Maryland's two Democratic senators have warned the White House that they would oppose the nomination of a Washington-based lawyer who is President Bush's top choice for a vacancy on the 4th U.S. Circuit Court of Appeals.

Sens. Paul S. Sarbanes and Barbara A. Mikulski said they would resist the nomination of Peter D. Keisler, who lives in Bethesda, for what they consider to be a Maryland seat on that court because Keisler has never been active in the state, professionally or personally. They also pointed out that he is not licensed to practice law in Maryland, one of five states that make up the 4th Circuit.

The vacancy Keisler would fill was created by the death last year of Francis D. Murnaghan Jr., a liberal judge from Baltimore.

The appointment of Keisler, 40, who has strong conservative credentials, is being considered at a time when Senate Democrats say they plan to fight any effort by Bush to pack the federal bench with conservative judges. But the Maryland senators said in interviews that their concerns were unrelated to Keisler's political views.

"We don't even know him - that's the problem," Mikulski said. "My position is that if you want to go on the 4th Circuit as a Maryland judge, you should at least be a member of the Maryland bar, which he is not. He has no record of professional legal activity within the state or active civic engagement."

Sarbanes said that in reviewing candidates for lifetime judicial appointments, he, too, expects them to demonstrate a record of distinguished service, both professionally and to the Maryland community. He also complained that the White House had made no effort to discuss Keisler with him or Mikulski until this week, when the nomination appeared imminent.

"If they had consulted with us first, they would have learned that our first requisite for the Maryland seat is that the nominee be an active Marylander," Sarbanes said.

The White House and Republican Senate leaders maintain that senators should not have veto power over such nominations. But there were signs yesterday that the White House might delay the Keisler nomination or make an alternative choice that would not set off a pitched battle over senatorial prerogatives.

The White House has been trying to shepherd the Keisler nomination through with the help of Rep. Robert L. Ehrlich Jr., a Baltimore County Republican who has become the administration's chief Maryland contact for federal jobs. Keisler met five weeks ago with Ehrlich and two other Republican congressmen from Maryland, Reps. Roscoe G. Bartlett of Western Maryland and Wayne T. Gilchrest of the Eastern Shore.

Ehrlich wasn't initially enthusiastic about the choice, either, because Keisler was unknown to him, but Ehrlich said he quickly recognized that Keisler had solid White House backing.

A top aide to Ehrlich said yesterday, though, that the Maryland senators' opposition seemed to have prompted the White House to at least rethink the Keisler appointment, which had seemed almost certain to come next week.

"They had told us earlier that if the senators were opposed, they may have to go their second, third or fourth choice," said Steve Kreseski, the Ehrlich aide. "We don't know what those are."

If Bush does include Keisler in his first batch of judicial appointments next week, Keisler could be at the center of a storm.

Democrats, who hold 50 seats in the evenly divided Senate, are resisting Republican efforts to diminish their influence in the process of confirming federal judges. They want the power they say Republicans had during the Clinton presidency to block a judicial appointment if a senator from the nominee's home state opposes it.

"We think they should employ exactly the same procedure with respect to Democratic senators now that there is a Republican president," Sarbanes said.

Senate Democratic Leader Tom Daschle of South Dakota said this week that Democratic senators would unite to block nominations in cases where home-state senators oppose them.

Sen. Orrin G. Hatch, the Utah Republican who is chairman of the Judiciary Committee, said there was no legal requirement that the appellate court seat opened by Murnaghan's death go to a Marylander.

He also said there was no requirement that the Maryland senators approve the successor. Two other judges on the Richmond-based appellate court, which has 15 seats, are from Maryland.

But Hatch said he told the White House that trying to win the nomination to replace Murnaghan over the objections of Sarbanes and Mikulski "would be very tough."

Keisler, a partner in the Washington office of the Chicago-based firm Sidley & Austin who specializes in telecommunications issues, declined to comment yesterday.

But Stephen H. Sachs, a Democrat and former state attorney general who has emerged as an informal advocate for Keisler, said he hoped Sarbanes and Mikulski would change their views. Sachs, who practices law in the 4th Circuit, said that Keisler is highly respected by lawyers across the political spectrum and would make a high-quality addition to the bench.

A graduate of Yale Law School, Keisler clerked for Judge Robert H. Bork on the federal appeals court in Washington and for Supreme Court Justice Anthony M. Kennedy and is a veteran of the Reagan White House.

"I understand the political desire to have a born-and-bred crabcake Marylander," Sachs said. "But with all the complex issues facing the federal court in the 21st century, that view is parochial and provincial and not in the interests of the administration of justice."

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