Circuit fight

'It's not a legal ... requirement. It's just a tradition.'

Seat: Maryland senators are fighting for what they say is the state's fair representation on the 4th Circuit Court of Appeals, but no law backs that quest.

November 09, 2003|By Michael Hill | Michael Hill,SUN STAFF

Maryland Sens. Paul S. Sarbanes and Barbara A. Mikulski will be glad to know that the first judge appointed to the 4th Circuit Court of Appeals was from their state.

The year was 1891 when the Congress created these appellate courts. Hugh Lennox Bond was the first 4th Circuit judge. He was from Baltimore, then the dominant city from the states making up the circuit -- Maryland, Virginia, West Virginia, North Carolina and South Carolina.

But as Sarbanes and Mikulski fight for what they see as Maryland's fair representation on what is now the 15-member 4th Circuit, they should know that only two years after the court was founded, it had no Maryland judge. Bond died in 1893 and was replaced by Charles Henry Simonton of South Carolina. That same year, Nathan Goff of West Virginia joined the court.

It was not until 1922 that a Marylander again appeared on the court, when John Carter Rose of Baltimore took a newly created seat.

Sarbanes and Mikulski are opposing the nomination of a Virginian -- Claude A. Allen, who many say has dubious qualifications for an appellate judge -- saying a Maryland jurist should occupy the seat that became vacant when Baltimore's Francis D. Murnaghan Jr. died in 2000.

There is no law backing that quest.

"It's not a legal or constitutional requirement," says Joel Grossman, a political scientist at the Johns Hopkins University. "It's just a tradition."

And it is a fairly new tradition at that. The idea of states having any sort of proportional representation on federal appellate courts did not come about until the past few decades. Before then, these courts were so small that there were not enough judgeships to go around.

"Originally it was much less of an issue," says Jonathan Entin of Case Western Reserve University law school in Cleveland. "The circuit courts had only three judges and most had a lot more than three states."

But as litigation in federal courts increased exponentially in the 1960s and 1970s, the courts grew like topsy.

The 4th Circuit had three judges until 1961, when two more were added. Another two joined in 1966, three more in 1978, one in 1984 and four in 1990 to bring it to its current level of 15.

Other circuits grew at similar rates. In 1997, Hawaii's Democratic Sen. Daniel K. Inouye persuaded his colleagues to require that all circuits have at least one judge from each of its states.

Entin says Hawaii's position in the sprawling 9th Circuit, which is dominated by California, led to that move.

"The 9th Circuit is large geographically, but there are a lot of states that are pretty small in terms of population," he says. "Some had not had a judge on the court of appeals for a long time.

"So now the rule is that each state gets one, but that is as far as it goes. The rest is a kind of tradition. As the circuits got larger, the president and the senators would have these informal understandings that each is entitled to a certain number of seats," Entin says. "But is it just that, an understanding."

To be sure, there are good reasons for spreading the judges out over a circuit. "The idea is that Maryland people who are judges are more in line with citizens of Maryland's view on things," says Michael Hayes of the University of Baltimore law school. "So there is a strong interest, but not a right, to be represented on that court."

But scholars say that does not mean there needs to be a proportional representation as if this were an elective body.

Expansion

The original three seats on the court were given to judges from various states. It was not until the 4th Circuit grew to five judges in 1961 that it had one from each of its states. As additional seats were added, they were dealt out to the states like a deck of cards.

After a 1966 expansion and a 1967 retirement, Maryland, Virginia and South Carolina each had two judges. North Carolina and West Virginia had one. Maryland got a third seat in 1978 when North Carolina and West Virginia got their second seats. In 1984, North Carolina got a third seat, but two years later it went to a South Carolinian.

The addition of four seats in 1990 brought the court to its current composition -- Virginia and South Carolina each have four seats, West Virginia and North Carolina each have two. Maryland has two sitting judges, with a third seat in the current dispute.

Population formula

In testifying against Allen's nomination. Sarbanes correctly said that Maryland, with a population of more than 5.3 million, has 20 percent of the circuit's total population of 26.6 million, concluding that it should have 20 percent of the seats on the court -- three of the 15.

But by that calculation, North Carolina with 8.2 million people should have four seats and South Carolina, at 4 million, should have two. The opposite is true.

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