`Big fight' brewing on judicial nominee

Md. senators try to block Bush pick from Virginia

October 31, 2003|By David L. Greene | David L. Greene,SUN NATIONAL STAFF

WASHINGTON - Maryland's two Democratic senators have vowed to defeat President Bush's nominee for the federal appeals court based in Richmond, Va., at a time when partisan warfare over the shaping of the judiciary has reached a fever pitch.

The rancor was on full display yesterday as Democrats blocked a vote on another Bush nominee, Charles W. Pickering Sr., a trial judge in Mississippi who has been chosen for a vacancy on the federal appeals court based in New Orleans. Pickering is the fourth Bush nominee to the federal bench who has been blocked by Democrats.

Accusing the White House of sending the Senate an extremist conservative in Pickering, Sen. Patrick J. Leahy of Vermont, the senior Democrat on the Judiciary Committee, told the Senate that the president was "dividing the American people, and he is dividing the Senate."

Later in the day, at a fund-raiser in Ohio, Bush berated Democrats for refusing to let Pickering and other nominees come up for a vote.

"It is time for some members of the United States Senate to stop playing politics with American justice," he said.

Such is the backdrop as Sens. Paul S. Sarbanes and Barbara A. Mikulski dig in for their bruising fight over the nomination of Claude A. Allen of Virginia. Allen, a deputy secretary in the Health and Human Services Department, has been tapped for U.S. Court of Appeals for the 4th Circuit. That court covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.

This week, Mikulski and Sarbanes vociferously denounced Allen's nomination. They complained that Bush was trying to put a Virginian in a court seat that has traditionally gone to a Marylander. The senators further argue that Maryland should have three seats on the 15-judge court to reflect its share of the population covered by the 4th Circuit.

In addition, they contend, Maryland needs to retain its voice on a court that issues crucial rulings on the environment, civil rights and education, among other issues.

The White House argues that based on the caseload produced by each state in the circuit, Maryland is entitled to a minimum of two seats but not necessarily three.

Mikulski vowed a "big fight" over Allen. It appears she may get it.

People on both sides of the issue say the Allen dispute will likely reach beyond the geographical objections of Maryland's senators. With emotions raw after the Pickering dispute, Democrats, Republicans and the interest groups that hold some sway over the judicial nomination process could make Allen a new cause celebre.

Much will depend on whether Sen. Orrin G. Hatch, the Utah Republican who is chairman of the Judiciary Committee, decides to bring the nomination to a vote in his committee, over the objections of the Maryland senators. A Hatch spokeswoman, Margarita Tapia, said yesterday that Hatch plans to do so. But it is unclear when.

"He wants to do it soon," Tapia said. She declined to elaborate on Hatch's thinking.

In one similar battle, Hatch has sought to compromise with Michigan's two Democratic senators, who are seeking to block Bush's nominees to the federal appeals court that covers their state. Hatch has thus far not brought those nominees to a vote. His decision to cooperate with his Democratic colleagues has rankled some Republicans.

Sean Rushton, executive director of the Committee for Justice, an interest group that fights for Bush's nominees, said he is set to begin a public push for Senate confirmations of Allen as well as of Janice Rogers Brown, a conservative justice on the California Supreme Court. Brown has been tapped for the U.S. Court of Appeals in Washington.

"At this point, [Allen] hasn't become a focus for us," Rushton said. "That will probably change next week."

Rushton's group, which was launched by C. Boyden Gray, who was White House counsel to the president's father, ran TV ads last year in support of Miguel A. Estrada, a conservative lawyer and Honduran immigrant whom Bush also nominated for the appeals court in Washington.

The TV ad, which infuriated Democrats, suggested that blocking Estrada's nomination constituted a type of "intolerance" akin to racism. Estrada, facing relentless opposition from Democrats, abandoned his wait for Senate confirmation last month.

Both Allen and Brown are African-American, lending an opportunity for the White House and Republicans to suggest anew that Democratic opposition is based on race. In a letter to Sarbanes and Mikulski seeking to justify Allen's nomination, Alberto R. Gonzales, the White House counsel, wrote that Allen's confirmation could "further dismantle an historic barrier that has stood for too long for African-Americans" on the appeals court in Richmond.

Democrats note, however, that President Bill Clinton faced implacable opposition by Senate Republicans to his effort to install Roger L. Gregory as the first black judge on the 4th Circuit court. Clinton resorted to a "recess appointment" to place Gregory on the court while Congress was out of session.

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