Geography, not ideology, focus of fight over judge

Nominee: Maryland's senators are arguing that a vacant seat on the federal bench should go to Marylander, not a Virginian.

November 02, 2003|By Julie Hirschfeld Davis | Julie Hirschfeld Davis,SUN NATIONAL STAFF

WASHINGTON - The fight Maryland's senators are waging against 4th Circuit Court nominee Claude A. Allen, a Virginian whom they say would be snatching a Maryland seat, is taking its place among the many bitter partisan battles Democrats have fought this year against President Bush's conservative judicial picks.

But this one is different from the straight ideological grudge matches surrounding Bush's other nominees, pitting Democrats opposed to what they call right-wing candidates against Republicans eager to advance them. In Allen's case, Sens. Paul S. Sarbanes and Barbara A. Mikulski, both Maryland Democrats, are not only fighting for a more mainstream candidate - Allen once worked for the conservative firebrand Jesse Helms - they're also defending their privileges as senators, and the interests of their state.

From the earliest days of the Senate, those prerogatives have been paramount among its members, often surpassing party affiliation and even matters of national policy. If other lawmakers or even the president ignore them, it can be perilous. But as Bush and Democrats continue the age-old tussle over the Senate's right to "advise and consent" on presidential nominations, Allen's case is testing those long-held traditions and precedents.

In testimony to the Judiciary Committee last week, Mikulski and Sarbanes - himself once a law clerk on the 4th Circuit - vowed to block Allen's nomination, arguing that the post should go to a Maryland candidate. The slot has been held by a long succession of distinguished Maryland jurists, most recently by the late Francis D. Murnaghan Jr. of Baltimore, whose experience and credentials the state's senators contend make Allen's record appear thin by comparison.

But beyond the question of qualifications, Maryland's senators say they see the Bush administration's choice of Allen as a conscious - and unacceptable - effort by the president to circumvent them, and in doing so, to deny their state its traditional representation on a federal court that handles many of its appeals. The White House advanced the Virginian's name after Sarbanes and Mikulski objected to two earlier names, Brett Cavanaugh and Peter Keisler, Washington lawyers who live in the Maryland suburbs.

Bush and his administration "try to come at us with someone, we turn them back, and now they're shifting the seat off to Virginia - or trying to," Sarbanes said. "I think our standards were too high for them, and they sort of decided to see if they couldn't go elsewhere."

The tactic has added the hint of an institutional foul to an already raging dispute over judges.

"Senators have always felt that they're here to represent their state, and they're all very jealous about those prerogatives, so they take very personally any perceived slight to their state," said Donald A. Ritchie, the associate Senate historian.

The issue of is one that often transcends party in a chamber governed by traditions and customs, in which each state - no matter its size - has equal representation. During Woodrow Wilson's presidency, when Democrats decided they would vote as one monolithic bloc according to predetermined party positions within their caucus, Ritchie noted that the only exception permitted was for matters that affected a senator's home state.

"From Day One, senators recognized that when it came to matters that specifically related to a particular state, that they would defer to the senators from that state, with the understanding that when it came to matters of their own state, they would have the final say," Ritchie said.

Indeed, even the most conservative Republicans who staunchly support Bush's judicial picks recognize that what has happened to Maryland's senators, if allowed to stand, could one day happen to them.

Sen. Trent Lott, a Mississippi Republican, said Virginia might be "statistically" entitled to the seat, given that it is "growing a lot more than Maryland is." But he hastily added: "I also want to be very careful how I answer, because I don't want a Mississippi slot on the 5th Circuit going to Texas."

Some believe the circumstances of Allen's nomination will prompt Sen. Orrin G. Hatch, the Utah Republican who is chairman of the Judiciary Committee, to seek a compromise on the 4th Circuit judgeship, reluctant to set a precedent that could come back to bite his own party when the tables are turned.

Hatch "realizes that what goes around comes around, and this could easily happen with another party in the White House," said Elliot M. Mincberg, the vice president of the liberal People for the American Way Foundation, which vehemently opposes Bush's judicial nominees. "If anything, it makes the level of enthusiasm on the Republican side less than it might be otherwise. Democratic and Republican senators recognize the institutional stake in not allowing the White House to run roughshod over senatorial prerogatives."

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