Bush picks U.S. attorney for Md. for 4th Circuit

November 16, 2007|By Matthew Dolan | Matthew Dolan,SUN REPORTER

President Bush nominated Maryland's top federal prosecutor last night to a seat on the nation's second-highest court based in Richmond, Va.

U.S. Attorney Rod J. Rosenstein, 42, of Bethesda had been linked to the judgeship on the 4th U.S. Circuit Court of Appeals for more than a year before the White House announcement.

But Maryland's two Democratic senators, who have long opposed such a nomination, immediately renewed their objections in what some political observers characterized as a major blow to Rosenstein's chances to reach the federal appeals court. In response, Rosenstein asked for a fair hearing on his selection.

"I am proud to have spent my entire legal career in nonpartisan public service in my home state of Maryland and in our nation's capital," Rosenstein said in a statement last night. "I understand that judicial confirmation is a political process.

"The most a lawyer can ask for is a fair hearing. I have faith that I will receive a fair hearing."

The 4th Circuit, traditionally considered the nation's most conservative, is short five of the 15 judges who hear federal cases appealed from Maryland, Virginia, North and South Carolina, and West Virginia. The court's open seat from Maryland has been without a judge since the death of Francis D. Murnaghan Jr. in August 2000 - the third-longest federal judicial vacancy in the nation.

But observers say partisan politics in a presidential election season may make Rosenstein's nomination little more than a principled stand for Republicans.

Maryland's senators exercise virtual veto power over a nomination from their state, and they have criticized Rosenstein's dearth of legal experience in the state and his lack of strong Maryland roots. They also bemoaned the inability to settle on a compromise candidate with the White House.

"Rod Rosenstein is doing a good job as the U.S. attorney in Maryland, and that's where we need him. He plays a vital role in fighting crime and protecting our communities in Maryland," Sen. Barbara A. Mikulski said in a statement. "In the twilight of the Bush administration, we don't need an acting U.S. attorney in Maryland. In light of the mismanagement of the Bush administration Justice Department, we cannot risk another vacancy."

In the joint statement, Sen. Benjamin L. Cardin added: "I regret that the White House did not listen to our recommendations to keep Rod Rosenstein as U.S. attorney. We had had hoped to work with the administration to find a consensus candidate for the 4th Circuit Court of Appeals with deep roots in the Maryland legal community."

Praised for his effective stewardship of about 70 federal prosecutors in Baltimore and Greenbelt, Rosenstein - who remains in the post during the confirmation process - is nonetheless likely to see his nomination wither without the support of Mikulski and Cardin, said one longtime court watcher.

"It's extremely unlikely that he'll be confirmed," said Carl Tobias, a law professor at the University of Richmond.

In a blistering rebuke, Bush charged last night that the Senate's procedure for approving federal judges has become too political and discourages qualified nominees from being considered.

"The Senate is no longer asking the right question, whether a nominee is someone who will uphold our Constitution and laws," he said in excerpts of a speech he was to deliver last night to the Federalist Society, a conservative group that emphasizes legal matters.

"Instead, nominees are asked to guarantee specific outcomes of cases that might come before the court," he said. "If they refuse - as they should - they often find their nomination ends up in limbo instead of on the Senate floor."

Rosenstein, an affable but intensely driven Harvard-trained lawyer, rose quickly in the Justice Department - most notably working for independent counsel Kenneth W. Starr - before being named the U.S. attorney for Maryland two years ago. His nomination was backed by Mikulski and now-retired Sen. Paul S. Sarbanes.

In his tenure, he has been able to prosecute high-profile public corruption cases, including former state Sen. Thomas L. Bromwell Sr., while tending to gun and drug-related crime that has beset Baltimore and other urban communities in the state. He has also toed the line with the Justice Department's priorities, including comprehensive prosecution of child pornography cases.

Supporters have praised Rosenstein's clear legal thinking and collegial style.

"I think he is a phenomenal nominee," said Montgomery County State's Attorney John McCarthy, who lauded Rosenstein's efforts to reach out to local prosecutors' offices. "I think he has done an extraordinarily fine job as U.S. attorney, uniformly respected by prosecutors and defense attorneys alike."

Those familiar with his work called his nomination a natural evolution for a highly accomplished public servant despite the political hurdles he faces.

"He's highly intelligent, very experienced and a guy who knows the appeals court. He's a great oral advocate," said Baltimore attorney Cy Smith, a past president of the Maryland Federal Bar Association.

"I think he's been a good U.S. attorney and turned over a good new leaf in the office after the debacle that took place," he said, referring to the rocky tenure of former Maryland U.S. Attorney Thomas M. DiBiagio.

Smith, who said he was not speaking on behalf of the bar association, said he does not agree with what he described as Rosenstein's "conservative" views on many issues. But he added that Rosenstein is "obviously highly qualified for the post."

matthew.dolan@baltsun.com

Sun reporters Matthew Hay Brown and David Nitkin in Washington contributed to this article.

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