A matter of balance

November 07, 2003|By Sherrilyn A. Ifill

IN AN electrifying hearing before the Senate Judiciary Committee last week, Maryland Sens. Barbara A. Mikulski and Paul S. Sarbanes exposed the ugly side of a long-standing and important battle over judicial nominations to the 4th U.S. Circuit Court of Appeals.

They argued that President Bush's nomination of attorney Claude A. Allen, a Virginian, to the seat left vacant after the death of Maryland Judge Francis D. Murnaghan Jr. of Baltimore violates the right of Marylanders to be adequately represented on the 15-member appeals court, which is based in Richmond, Va., and covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.

Mr. Bush's failure to nominate a Marylander to the open seat is emblematic of the way the Republicans have played fast and loose with geographic, racial and political diversity on the 4th Circuit for 10 years. Maryland has two judges on the court. Mr. Sarbanes says it should have three because of Maryland's population.

During President Bill Clinton's presidency, Republican Sen. Jesse Helms of North Carolina refused to approve any black nominees made to the then-all white 4th Circuit, including two eminently qualified black North Carolinians. Mr. Helms argued, as did the chief justice of the 4th Circuit, J. Harvie Wilkinson III, that the court didn't need to have all of its 15 seats filled.

The result was that North Carolina -- Mr. Helms' own state -- had no judge on the 4th Circuit. Maryland's own Judge Andre M. Davis was never given a hearing by the Republican-controlled Judiciary Committee. Roger L. Gregory, a Virginian and the first black judge on the 4th Circuit, was seated only when Mr. Clinton used a recess appointment to integrate that bench. To his credit, after Mr. Bush became president, he renominated Judge Gregory, who was finally approved by the full Senate.

Without question, Ms. Mikulski and Mr. Sarbanes are fighting for geographic as well as ideological diversity on the 4th Circuit. Maryland's most prominent lawyers and jurists tend not to be conservative, at least not conservative enough for the Federalist Society lawyers that some say vet all of President Bush's potential nominees behind the scenes.

The nomination of Mr. Allen to this particular open seat rubs Marylanders the wrong way for another reason.

Judge Murnaghan had a long and distinguished record as a supporter of civil rights and as a jurist of the highest caliber. To fill his seat with a Virginia nominee who was the press spokesman for Mr. Helms during the senator's race-tinged 1984 Senate campaign and who does not have a highly distinguished record as a judge, practicing lawyer or scholar understandably raises serious concerns. At least one of these qualities is generally deemed necessary for a Circuit Court seat.

That the 4th Circuit is widely considered the most conservative in the nation makes the issue of what kind of judge will replace Mr. Murnaghan even more significant. We should be seeking ideological balance, not ideological domination on our circuit courts.

That Mr. Allen is black does not allay the concerns raised by Maryland's senators. In fact, the president's cynical use of race to undercut opposition to his conservative nominees even further debases the judicial nomination process.

Racial diversity is important -- indeed, essential -- to the legitimacy of our judiciary. But racial diversity used as a political wedge, as in the first President Bush's nomination of Clarence Thomas to the Supreme Court, creates long-lasting bitterness from which neither the public nor the nominee is likely to recover soon.

The lesson from Mr. Bush's successful nomination of Allyson K. Duncan as the first black woman to the 4th Circuit earlier this year is that when his nominees are distinguished, aren't extremists and are forthcoming with the Judiciary Committee about their records, the president receives remarkably little opposition from the Democrats.

Fortunately, Mr. Sarbanes and Ms. Mikulski have decided to play hardball on the Allen nomination, first by firing off a letter this summer to White House Counsel Alberto Gonzales protesting it and now publicly making the case before the Judiciary Committee.

When the normally placid and mild-mannered Mr. Sarbanes looks Republican Sen. John W. Warner of Virginia in the eye at a public hearing and says, "I don't intend to lose," you can believe we are pitched for battle. The administration would do well to withdraw Mr. Allen's nomination and return the Maryland seat to Marylanders.

Sherrilyn A. Ifill is an associate professor of law at the University of Maryland School of Law.

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