A judicial priority

Obama should act in an expeditious and bipartisan way to fill the long-vacant appellate seat of Md.'s Francis Murnaghan

November 30, 2008|By Carl Tobias

In the summer of 2000, Francis Murnaghan, a highly respected Baltimore jurist, died after rendering more than two decades of distinguished service on the U.S. Court of Appeals for the Fourth Circuit. Since then, no one has been appointed to his seat. Because that long-standing vacancy deprives Maryland of representation on the court and erodes the delivery of justice, President-elect Barack Obama must expeditiously name a highly qualified replacement.

The Fourth Circuit now has vacancies in four of the 15 judgeships authorized for the tribunal, which serves as the court of last resort for 99 percent of appeals filed in Maryland, North Carolina, South Carolina, Virginia and West Virginia. The Third and D.C. Circuits have two openings, while the country's other nine appellate courts have either no empty seats or one. Among the appellate courts, the Fourth Circuit affords the smallest percentages of oral arguments and published opinions, which are valuable yardsticks of appellate justice.

There are numerous reasons why Judge Murnaghan's seat has remained unoccupied for eight years. His death in August 2000 meant that it was too late in a presidential election year for the Senate to confirm a nominee (although on Oct. 6 of that year, President Bill Clinton did nominate Andre Davis, a U.S. District Judge for the District of Maryland).

The Bush administration ineffectively attempted to fill this opening. In the Bush White House's early days, it suggested as a possible candidate Peter Keisler, who later served as assistant attorney general for the Department of Justice's Civil Division. However, then-Sen. Paul Sarbanes and Sen. Barbara Mikulski, both Democrats, opposed his possible nomination because Mr. Keisler had never practiced law in Maryland.

During 2003, Mr. Bush nominated Claude Allen, who had served as deputy secretary of Health and Human Services and was from Virginia, for the Murnaghan seat. Maryland's senators objected to Mr. Allen because he had practiced law minimally and not in Maryland. The Allen nomination languished, and he eventually withdrew. In 2007, Mr. Bush nominated Rod J. Rosenstein, the Maryland U.S. attorney, but Senators Mikulski and Benjamin Cardin opposed this choice because they preferred that he remain as Maryland's chief federal prosecutor.

President-elect Obama should follow several practices to expeditiously fill the Maryland vacancy. First, he must institute a bipartisan approach and end the unproductive dynamic of charges, recriminations and partisan division. Second, the chief executive ought to consult by soliciting guidance on candidates from Ms. Mikulski and Mr. Cardin, as well as high-ranking Maryland GOP officials, before he formally nominates.

Both Maryland senators have pledged to work with Mr. Obama. Ms. Mikulski observed that she anticipates cooperating to fill the seat "with another experienced, respected candidate who has strong ties to Maryland and its legal community." Mr. Cardin stated that he will encourage the president to seek gender, ethnic and ideological diversity and appoint judges who appreciate the importance of individual rights. The White House should tender consensus nominees who are very smart, ethical, independent and industrious and have a balanced temperament.

President-elect Obama promised that he would increase bipartisanship. The chief executive can fulfill this commitment by swiftly appointing an excellent jurist to assume Judge Murnaghan's protracted Fourth Circuit vacancy because Maryland deserves representation on the court, which needs all of its members to deliver a high quality of appellate justice.

Carl Tobias is the Williams professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.

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