The political dog that simply wouldn't bark

November 02, 2003|By C. Fraser Smith

THE DREARY cycle of judicial appointing spun on last week in Washington with a great commotion over the allegation that Sen. Paul S. Sarbanes had succumbed to rank emotion.

He had, it was said, become a Maryland chauvinist, a passionate defender of Maryland's prerogatives. Prior to that moment, it was alleged, he had been a process geek. Senator Laconic, they called him.

In the news business, we call this missing at least half the story. The rest of it was the silence from Annapolis. Republican Robert L. Ehrlich Jr. presides as governor. In virtually any conceivable circumstance, he'd have a say in all this. But not a peep from the usually outspoken Mr. Ehrlich.

Why wasn't he standing at least figuratively beside Mr. Sarbanes and Sen. Barbara A. Mikulski as they defended the Free State's honor? The White House was giving Maryland's seat on the 4th U.S. Circuit Court of Appeals to Claude A. Allen, a Virginian.

OK with Mr. Ehrlich? Apparently.

The governor and his minions have been busily removing from state service every person who is or ever was a Democrat. It's part of the political game, of course, and Democrats can't utter a word. Patronage has been their preserve since before the flood, so a little catch-up was in order.

But here was a major plum plucked from Mr. Ehrlich's plate and handed to Virginia without a squawk of outrage. And he had a pretty good argument: With 20 percent of the circuit's population, Maryland should have three judges on this important, 15-member court. It has two.

Mr. Sarbanes insists the White House pledged to restore the balance. Then it named Mr. Allen, a man of dubious qualifications, according to various groups that have reviewed his record. Mr. Sarbanes says nothing about that directly. He says Maryland deserves three judges, and he's sworn he will oppose Mr. Allen "with all the strength I can muster."

This means, it is said, a filibuster. He will call in chits with Senate colleagues who may be inclined to support him - lest they leave themselves open to similar hijacking. Since Mr. Sarbanes has seldom asked his colleagues for this sort of support, he's very likely to get it.

He's doing it for several reasons. Everything is politics, of course, but in this case principle is also part of the mix. Imagine that. He and Senator Mikulski say it's Maryland's seat by tradition. The 4th Circuit has had quality judges from Maryland from its inception, a tradition that ought to be upheld.

The seat is known unofficially in Maryland as the Murnaghan seat. The late Francis D. Murnaghan Jr. was a pre-eminent lawyer and distinguished judge for many years; president of the Baltimore school board; chairman of a charter revision commission for the city; and leader of various civic and cultural organizations, including the Walters Art Museum, the Baltimore Museum of Art and the Johns Hopkins University.

So, what of Mr. Ehrlich? Why is he virtually silent? Perhaps he cannot invoke the spirit of Democrat Frank Murnaghan. Fair enough. But surely there are Republicans in Maryland with credentials sufficient to compel the support of Senators Sarbanes and Mikulski. Both have testified in favor of Republican appointments, including that of Richard D. Bennett, the former U.S. attorney from Maryland and a leading member of the Maryland GOP.

In the absence of an Ehrlich comment on this curious affair, speculation rests on recent history.

In April 2001, the White House advanced another name for the so-called Murnaghan seat. This man, Peter D. Keisler, though a well-regarded Washington-based practitioner, was not a member of the bar in Maryland. That qualification seemed to Maryland's senators an essential qualification. Some said then: Accept Mr. Keisler or face the prospect of a less worthy choice. Senator Mikulski says the White House is playing a political version of bait and switch.

Surely payback and spite make the game more interesting.

But who is getting spited? The state of Maryland will have one judge below its quota on this important court. The Maryland GOP will lose, at least for the moment, an opportunity to promote one of its own - a distinct loss for a party out of power for so long.

Mr. Ehrlich is letting it happen without a whimper. His ties to President Bush may be too tight to permit a public squirm. What an odd spectacle it is for Democrats to be fighting for a job rightfully belonging to Republicans. When they run for re-election, they can say they went to the mat for Maryland while the GOP governor took a pass.

C. Fraser Smith is news director for WYPR-FM. His column appears Sundays.

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