State Bias Clouds Judicial Nominee's Confirmation

Maryland senators repeated their opposition Tuesday to the "unacceptable" nomination of a Virginian to a federal circuit court seat traditionally allotted to a Marylander.

Maryland Democratic Sens. Paul Sarbanes and Barbara Mikulski urged the Senate Judiciary Committee to reject the nomination of Claude Allen (search), and said his appointment would upset the geographical balance on the 4th U.S. Circuit Court of Appeals (search).

"It is unacceptable that the Bush administration could not find one well-qualified lawyer to appoint to this prestigious court," out of 30,000 practicing lawyers in Maryland, Mikulski said in a written statement.

But Virginia Sens. John Warner and George Allen, both Republicans, said Claude Allen should fill the seat because of his qualifications.

"Allen is evidently qualified to serve as judge for the Fourth Circuit," said George Allen, who is not related to the nominee. "He's served in every branch of government."

He called Claude Allen an "outstanding person" who would "fairly adjudicate cases for the Fourth Circuit," and called on the committee to send the nomination to the floor for vote.

Committee Chairman Orrin Hatch, R-Utah, agreed that Allen has the qualifications and experience for the seat, and noted, "There is nothing in the law that says that [Maryland] deserve(s) another seat."

But he also said he understood the Maryland lawmakers' point of view.

Allen faced some tough questions Tuesday from committee members, who noted that he referred to "queers" in 1984 when he was an aide to former Sen. Jesse Helms (search), R-N.C. Allen said it was an innocent reference to odd behavior, not homosexuals, and that such a reference today would be inappropriate for a federal judge.

He refused to directly address the opposition by Mikulski and Sarbanes to his nomination.

Allen, the current deputy secretary for the U.S. Department of Health and Human Services, served as secretary of the Virginia Department of Health and Human Services under former Gov. Jim Gilmore. He also worked in the Virginia attorney general's office.

Allen was nominated by President Bush in April to fill the 4th Circuit seat that has been vacant since the 2000 death of Judge Francis D. Murnaghan Jr. (search) of Baltimore.

But the Maryland senators argued that giving the seat to a Virginian would under-represent Maryland in the 4th Circuit, which includes Maryland, Virginia, West Virginia, North Carolina and South Carolina.

"We feel very keenly that Maryland should have three seats in the circuit," said Sarbanes, adding that population has been the traditional criterion for the allotting judgeships on the bench.

Maryland judges currently have two of the 15 seats in the 4th Circuit.

But the choice of Allen, a Virginian, follows a dispute that precedes Bush's tenure. It dates back to Helms' refusal to allow any of President Clinton's judicial nominees from North Carolina to serve on the court after its last vacancy was announced.

Clinton satisfied Helms' opposition by nominating Roger Gregory of Virginia, who became the first black judge on that circuit. But Gregory filled a vacancy that was considered to be a North Carolina seat, breaking down the concept of proportional representation.

Maryland's senators say the administration should stick to its pledge to have judges on the bench in proportion to the population of the states in the circuit.

"Our opposition is not based on party, it is about representation," Mikulski said. "If the administration wants real balance, they should nominate a Maryland lawyer because we're entitled to fair representation."

Mike Waldron, a spokesman for George Allen, said, "the states that make up the circuit court have common issues and common concerns."

But Maryland officials maintained that no one can better represent Marylanders than a lawyer from the state.

"We have the people, why not give us the opportunity?" Mikulski asked. "If Maryland loses a seat, they lose a voice."

Hatch would not say when Allen's nomination might be voted on, but said he would try to resolve the differences between the two states first.