Maryland Senators Keep Fourth Circuit Seat Open For Eight Years
Rod Rosenstein flunks their litmus test
Over the course of the George W. Bush and Barack Obama administrations, the Fourth Circuit transformed from being perhaps the most conservative court of appeals in the country to being among the most liberal. Each seat that Bush failed to fill with a conservative judge has its own story.
We’ve already addressed Senator George Allen’s terrible blunder in pushing Bush to give a lifetime appointment to Bill Clinton’s recess appointee Roger L. Gregory. We’ve also seen how Bush, through his unsuccessful nominations of Terrence Boyle and Robert Conrad, was unable to fill a Fourth Circuit vacancy in North Carolina that he inherited.
Let’s take a look at what happened to the putative Maryland seat that opened up when Fourth Circuit judge Francis Murnaghan died in August 2000.
***
In October 2000—less than a month before the presidential election—Bill Clinton nominated federal district judge Andre Davis to fill Murnaghan’s seat. Two decades earlier, Davis had been a law clerk for Murnaghan. With the Senate in Republican control, there was no prospect of any action on the nomination. Unlike with Gregory, Clinton did not recess-appoint Davis to the seat. Gregory was in private practice, so he had little to risk from a recess appointment: if it expired, he could simply return to private practice. But Davis would vacate his federal district judgeship if he accepted a recess appointment to the Fourth Circuit.
Bush hoped to nominate the outstanding lawyer Peter Keisler to Murnaghan’s seat and to include him in his initial slate of appellate nominees. But Maryland’s two Democratic senators, Paul Sarbanes and Barbara Mikulski, objected to Keisler, purportedly on the ground that the longtime resident of a Maryland suburb of Washington, D.C. did not have sufficient ties to the state. They advanced the same objection to Brett Kavanaugh, even though Kavanaugh was raised in Bethesda (suburban D.C.) and his mother was a Maryland state judge. Their refusal to return positive blue slips doomed both candidacies.
After two years of obstinacy from Sarbanes and Mikulski, the White House decided to shift the seat to Virginia, whose two Republican senators would be more accommodating. But Sarbanes and Mikulski threatened to filibuster Bush’s nomination of Claude Allen in 2003. Republicans on the Judiciary Committee, knowing that Democrats had the votes to sustain a filibuster, weren’t eager to establish the principle that the committee would allow a president to evade home-state senators’ blue-slip privilege by shifting the nomination to another state. Why undermine their own blue-slip privilege in exchange for nothing? The committee declined to vote on Allen’s nomination, and it died at the end of 2004.
Through all of 2005 and 2006, when Republicans enjoyed a 55-seat majority in the Senate, the White House couldn’t work out a nominee acceptable to Sarbanes and Mikulski.
In November 2007, after Democrats had regained control of the Senate—with Ben Cardin replacing Sarbanes—Bush nominated Rod Rosenstein. In doing so, Bush put to the test the Maryland senators’ supposed litmus test of strong ties to Maryland.
In 2005, Sarbanes and Mikulski had given their blue-slip approval to Bush’s nomination of Rosenstein as U.S. Attorney for Maryland. Rosenstein had won ardent praise from Maryland Democrats for his performance as U.S. Attorney. As the Baltimore Sun reported, Maryland attorney general Douglas Gansler lauded Rosenstein for
being the first Maryland U.S. attorney to gain a racketeering indictment against a gang and for restoring order to the U.S. attorneyʼs office after the tumultuous tenure of Thomas M. DiBiagio. “He came into an office that was in complete disarray,” said Gansler… “And he really gained the confidence of the legal community and restored the morale of the office in a relatively quick amount of time.”
Earlier in his career, Rosenstein had worked years as a line prosecutor in the U.S. Attorney’s office in Maryland. And his role as counsel to senior Department of Justice officials in the Clinton administration gave him bipartisan credentials that you might think would appeal to Maryland’s senators.
But no.
“Rod Rosenstein is doing a good job as the U.S. attorney in Maryland, and thatʼs where we need him,” Mikulski said, in explaining why she didn’t want Bush to nominate him. After he was nominated, the Washington Post reported that Mikulski and Cardin objected that Rosenstein “lacks the lengthy history of legal experience in Maryland and strong Maryland ties that they considered the ‘primary criteria’ for the judgeship.”
***
What was really going on, of course, is that Maryland’s Democratic senators wanted a liberal to occupy the Murnaghan seat. Having bested Bush for the six years of his presidency, including four years in which Republicans held the Senate, they weren’t going to fold as the end drew near and Democrats were in charge. What’s more, they recognized that the Fourth Circuit was on the verge of having a liberal majority.
Rosenstein never received a hearing.
***
In 2009, Barack Obama nominated Clinton’s former pick Andre Davis to Murnaghan’s seat, and the Senate promptly confirmed him.
Davis’s ties to Maryland were indisputably strong: he grew up in Baltimore, attended law school at the University of Maryland, worked in its U.S. Attorney’s office, taught at the University of Maryland, was a state-court judge, and had served as a federal district judge in Maryland since 1995.
But when Davis took senior status in 2014, Obama’s nomination of Pamela Harris to replace him exposed the phoniness of the Maryland senators’ stance on Rosenstein. Like Kavanaugh, Harris grew up in Bethesda before going to college and law school at Yale and working in Main Justice and for D.C. law firms. At Harris’s confirmation hearing, all that Mikulski could muster on Harris was that she “work[ed] with Maryland’s public defender on an amicus curiae brief involving Montgomery County Schools.” So much for “the lengthy history of legal experience in Maryland and strong Maryland ties” that Mikulski and Cardin supposedly “considered the ‘primary criteria’ for the judgeship.”
What really mattered to Mikulski and Cardin was that Harris was liberal—indeed, very liberal—and Rosenstein wasn’t.
The contrast between how Rosenstein and Harris were treated realy exposes the whole Maryland ties argument as a pretext. Rosenstein had years of experince as US Attorney in Maryland and worked in the office before that, but somehow that wasn't enough? It's pretty clear ideology was the only thing that mattered here.