Bush nominates Allen again for 4th Circuit appeals court

President's action is sure to re-ignite clash with Md. senators over vacancy

January 21, 2004|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

WASHINGTON - President Bush re-nominated Claude A. Allen for a federal appeals court seat yesterday, putting the conservative Virginian back in the spotlight and re-igniting a battle that pitted Maryland's two Democratic senators against the White House last year.

Allen was nominated last spring to fill a vacancy on the U.S. Court of Appeals for the 4th Circuit, formerly held by Francis D. Murnaghan Jr., a liberal from Baltimore who died in 2000.

Sens. Paul S. Sarbanes and Barbara A. Mikulski of Maryland said yesterday that they would again raise vehement opposition to Allen's nomination on the grounds that the seat he would fill has traditionally been held by a Marylander.

"If Maryland loses a seat, we lose a voice," Mikulski said. "I will not stand by and let this happen. I will continue to stand with Senator Sarbanes and oppose this nomination."

Their assertion that the vacancy rightfully belongs to Maryland is not the only argument against the Allen nomination. The 4th Circuit - which is based in Richmond, Va., and covers Maryland, Virginia, West Virginia and the Carolinas - is dominated by conservative judges, mostly from Virginia and South Carolina.

During heated confirmation hearings, Democrats on the Senate Judiciary Committee portrayed Allen as a conservative ideologue with a thin legal resume. But Republicans, who control the committee, countered that such criticism was groundless and amounted to an effort to stall the proceedings and doom the nomination.

The struggle over Allen's nomination is part of a broader battle between the administration and Democrats in Congress, who have blocked some of Bush's judicial choices.

Democrats complain that the president is seeking to reshape the judiciary with hard-line conservatives who don't reflect mainstream thinking. Republicans argue that Democrats want to deprive Bush of his constitutional prerogative to appoint judges who reflect his conservative philosophy.

The White House cast Bush's re-nomination of Allen as a legitimate means of carrying out his right to nominate a qualified candidate of his choice.

Erin Healy, a White House spokeswoman, said, "Allen is well-qualified. He has extensive legal experience in the state and federal government."

Through a spokesman, Allen declined to comment.

Sarbanes and Mikulski, as well as Democrats on the Judiciary Committee, hoped the dispute over Allen had ended when the congressional session did in December. The White House and Republican committee members failed to get the nomination out of the committee and to the full Senate for a vote before Congress adjourned.

Other top Democrats say they will stand behind Sarbanes and Mikulski, who have thrown their weight behind keeping Allen off the 4th Circuit.

"The Maryland senators feel strongly that the Maryland vacancy on the 4th Circuit should be filled by a Marylander," Sen. Patrick J. Leahy of Vermont, the senior Democrat on the committee, said in a statement. "This administration's callous treatment of judicial nominations and its exploitation of them for partisan political purposes demonstrates a complete disregard for the need to preserve the independence and impartiality of the federal courts for all."

Allen, 43, has been deputy secretary of the Department of Health and Human Services since he was appointed in 2001.

Born in Philadelphia, Allen received his law degree from Duke University and later worked as an aide to Jesse Helms, the former North Carolina senator.

No mandate allots a specific number of seats on a federal court to each state. But historically, seats have been apportioned based on population.

Sarbanes and Mikulski argue that Maryland makes up about 20 percent of the population of the circuit's jurisdiction and therefore should have 20 percent, or three, of the seats on the 15-member court. Two judges already on the 4th Circuit are from Maryland.

Yesterday, Sarbanes vowed to renew the fight.

"Simply put, nothing has changed," he said. "We remain very much opposed to taking a seat on the 4th Circuit away from Maryland."

Sun staff writer David L. Greene contributed to this article.

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