GOP senator vows to push court nomination through

Mikulski, Sarbanes signal filibuster, saying seat should go to Marylander

October 30, 2003|By Julie Hirschfeld Davis and David L. Greene | Julie Hirschfeld Davis and David L. Greene,SUN NATIONAL STAFF

WASHINGTON - Over the fierce objections of Maryland's two senators, the top Republican on the Senate Judiciary Committee said yesterday that he will try this fall to muscle through his panel the nomination of Claude A. Allen of Virginia, President Bush's choice for the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.

The nomination came under intense criticism Tuesday from Sens. Barbara A. Mikulski and Paul S. Sarbanes, both Maryland Democrats. They told a committee hearing that the seat for which Allen has been picked should go to their state, which has held it in the past - not to Virginia.

Both signaled that they intend to filibuster the nomination if it comes to the floor. It would be the latest chapter in a heated partisan fight in the Senate over Bush's conservative judicial choices.

Sen. Orrin G. Hatch, the Utah Republican who is chairman of the judiciary panel, said it might be difficult to overcome those obstacles and get Allen's nomination to the full Senate. But he vowed to work to get his committee to back Allen, who once worked for Jesse Helms, the former conservative GOP senator from North Carolina.

"I'm not going to ignore, in theory, the complaints of my colleagues, but that doesn't mean we should not go ahead with Claude Allen," Hatch said. "I think we can put him out of committee, which we should do, or at least try to do."

Mikulski and Sarbanes are mounting an all-out offensive to prevent that from happening. Displaying an uncharacteristic fervor in his testimony this week, Sarbanes vowed to "oppose this effort with all of the strength that I can muster" and brusquely declared that he and Mikulski "do not intend to lose."

"This is going to be a big fight," Mikulski said yesterday, "because we're going to make it a big fight."

The two are lobbying lawmakers to oppose Allen, in the Judiciary Committee and on the Senate floor, where a filibuster would force Republicans to collect 60 supporters before they could hold a vote on whether to confirm Allen.

Democratic opposition to Bush's judicial nominees has become common in the closely divided Senate. Democrats have moved this year to block three of the candidates, arguing that they are conservatives outside the mainstream. They complain that Bush is trying to pack the federal bench and jeopardize key precedents on such issues as abortion and civil rights.

But Allen's case is unusual because it involves state prerogatives and legislative precedents - two powerful forces in the Senate - more than ideology.

"We want this to be a fairness vote on the Maryland seat," Mikulski said.

Sarbanes and Mikulski contend that Maryland has a right to the seat on the appeals court - which also covers North and South Carolina and West Virginia - because it has traditionally been held by a Marylander. Most recently, it was occupied by Francis D. Murnaghan Jr. of Baltimore, who was regarded as one of the few remaining liberals on the increasingly conservative court.

Based on Maryland's population - about 20 percent of the 4th Circuit's total population - the senators say their state should be represented by three judges on the 15-judge bench. If Allen or another non-Marylander gained the open seat, the state would have two remaining judges on the court.

White House officials counter that they are the ones trying to bring "geographical balance" to the 4th Circuit, arguing that because Maryland generates a smaller caseload than its share of the population the court covers, it's entitled to fewer seats.

This week's emotional appeals from Maryland's senators did not sway Bush. Ashley Snee, a White House spokeswoman, said last night that Bush "hopes the Senate will move quickly" to confirm Allen and believes he is well-qualified for the seat.

Hatch said he could see no "quick resolution" to the stalemate. Instead, the Allen fight is likely to become another in a string of drawn-out struggles over judges in which each party accuses the other of obstinacy.

Such battles seldom hurt either side, analysts note. The issue has been helpful to Democrats in mobilizing their liberal base against Republican judges and to Republicans in firing up those who want Bush to nominate conservative judges.

Sheldon Goldman, a political science professor at the University of Massachusetts-Amherst who has written about the judicial selection process, said this could be a "win-win" situation for the White House: "They win if they get a person confirmed. They win if they don't because they have themselves a campaign issue and they have satisfied their core constituency."

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