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.
