Rosenstein linked to vacancy on 4th Circuit

Sarbanes, Mikulski prefer he remain as U.S. attorney for Md.


U.S. Attorney Rod J. Rosenstein, Maryland's top federal prosecutor, is under consideration to fill a long-standing vacancy on the U.S. Court of Appeals for the 4th Circuit, according to sources familiar with the process.

If Rosenstein's nomination is offered by President Bush and confirmed by the Senate, his selection could build on the White House's recent success with federal judicial nominees by installing a young star from the Justice Department in an appellate circuit already known as the nation's most conservative.

But the state's two Democratic U.S. senators are declining to endorse Rosenstein, 41, for the U.S. Court of Appeals, the second-highest federal court in the nation. Sens. Barbara A. Mikulski and Paul S. Sarbanes said Rosenstein lacks experience on the bench and in the state's civic life.

FOR THE RECORD - An article yesterday about a vacancy on the U.S. Court of Appeals for the 4th Circuit incorrectly characterized Sen. Paul S. Sarbanes' response to a question about whether he has made phone calls to federal judges about the qualifications of Maryland U.S. Attorney Rod J. Rosenstein. Sarbanes did not address that issue when asked by a reporter, but his spokesman said the senator did not make any such calls.
The Sun regrets the errors.

"Not at this point," said Sarbanes, noting that Rosenstein was brought in from outside the state to fix the Baltimore office. "He's done a good job of that, and we want him to continue."

The Richmond, Va.-based 4th Circuit -- which reviews federal court decisions from Maryland, Virginia, West Virginia, and North and South Carolina -- has historically apportioned seats according to each state's population. Three judges on the 15-seat court hailed from Maryland before Francis D. Murnaghan Jr. of Baltimore died in 2000.

The Bush White House signaled in early 2001 that its first choice for the seat was prominent Washington lawyer Peter D. Keisler of Bethesda. Keisler's potential nomination drew scrutiny because he was not a member of the Maryland bar and was not widely known in the state's legal circles. He withdrew from consideration and was named to a top Justice Department post.

Bush then nominated Claude A. Allen, who had worked for former North Carolina Sen. Jesse Helms. His selection was blocked when Mikulski and Sarbanes argued that Allen lived in Virginia but was vying for a seat that belonged to Maryland. They also described Allen as unqualified.

Allen, who later served as Bush's top domestic policy adviser, resigned this year after he was accused of stealing products worth more than $5,000 through a retail fraud scheme.

Rosenstein, a Harvard-trained lawyer who rose quickly inside the Justice Department -- including a stint working for former independent counsel Kenneth W. Starr -- became U.S. attorney for Maryland in July.

Erin Healy, a White House spokeswoman, declined last week to comment on Rosenstein, saying, "We don't speculate on judicial nominations."

In an interview in December, Rosenstein said he was not a candidate for the judgeship. Last week, he said he would have no comment on the position.

But others in the legal community say his name has been linked to the job.

About four weeks ago, a prominent Maryland lawyer said he received a call from a federal judge in Greenbelt asking about Rosenstein as part of Sarbanes' preliminary vetting process.

The attorney, who was knowledgeable about Rosenstein's work as an assistant U.S. attorney in Greenbelt in the late 1990s, confirmed the nature of the call on the condition of anonymity because the White House has not made an announcement.

Rosenstein did not apply for the job, a person familiar with the process said. Instead, he was sought out by officials at the White House and Justice Department charged with finding a nominee, according to the source.

Both Sarbanes and Mikulski have said they remain committed to their criteria for the 4th Circuit slot: a judicial candidate who has worked and lived in the state for a long time.

"I think we should have people who have had a substantial Maryland professional career of the highest quality, and also had a significant involvement in Maryland civic life," Sarbanes said in a recent interview.

Sarbanes declined to say whether he had made phone calls to the judges to ask for their assistance in finding out more about Rosenstein's qualifications.

Mikulski encouraged the White House to look at members of the federal bench in Maryland to elevate to the 4th Circuit.

"There are men and women who are already serving, and have already been confirmed by the Senate and supported in their nomination by either Senator Sarbanes or both of us," she said.

When asked about Rosenstein's possible nomination, both senators said that he would not meet their standards.

Mikulski added: "I think he's doing a good job as the U.S. attorney, but he has worked primarily in other areas" outside Maryland.

Supporters and longtime associates of Rosenstein insisted that he has both the experience in Maryland, evenhanded temperament and intellectual fortitude to take on the job.

"If there is a notion that he hasn't shown enough commitment to civic life in Maryland, I'd say that his 70-plus-hour weeks working on cases and for victims of crime show that's not accurate," said Andrew C. White, a friend and former federal prosecutor who now works as a defense attorney in Baltimore.

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