No basis in law for geographic claims to Fourth Circuit seats

Regarding the opposition of Maryland's U.S. Senators to the nomination of Claude Allen, who is not from Maryland, to the U.S. Court of Appeals for the Fourth Circuit, this article in the Baltimore Sun explains that there is no basis in law for their arguments that the seat belongs to Maryland.

The article describes the history of the Fourth Circuit, and says in part:

"The idea of states having any sort of proportional representation on federal appellate courts did not come about until the past few decades. Before then, these courts were so small that there were not enough judgeships to go around. . . .

The 4th Circuit had three judges until 1961, when two more were added. Another two joined in 1966, three more in 1978, one in 1984 and four in 1990 to bring it to its current level of 15. . . .

The original three seats on the court were given to judges from various states. It was not until the 4th Circuit grew to five judges in 1961 that it had one from each of its states. As additional seats were added, they were dealt out to the states like a deck of cards.

After a 1966 expansion and a 1967 retirement, Maryland, Virginia and South Carolina each had two judges. North Carolina and West Virginia had one. Maryland got a third seat in 1978 when North Carolina and West Virginia got their second seats. In 1984, North Carolina got a third seat, but two years later it went to a South Carolinian.

The addition of four seats in 1990 brought the court to its current composition -- Virginia and South Carolina each have four seats, West Virginia and North Carolina each have two. Maryland has two sitting judges, with a third seat in the current dispute. . . .

In testifying against Allen's nomination. Sarbanes correctly said that Maryland, with a population of more than 5.3 million, has 20 percent of the circuit's total population of 26.6 million, concluding that it should have 20 percent of the seats on the court -- three of the 15.

But by that calculation, North Carolina with 8.2 million people should have four seats and South Carolina, at 4 million, should have two. The opposite is true.

Sherilynn Ifill of the University of Maryland School of Law says there is a simple reason for that -- North Carolina Sen. Jesse Helms opposed every nomination that the Clinton administration put forward from North Carolina because the nominees were black. . . .

Virginia, with 7.2 million people, fits the population formula with its four seats, though West Virginia would seem entitled to only one of its two seats with 1.8 million people. . . .

Some contend that this all could have been avoided -- and the 4th Circuit well-served -- if Maryland's senators had accepted Keisler's nomination. After all, one of Virginia's 4th Circuit judges, J. Michael Luttig, spent most of his legal career in Washington before joining the court in 1991.

But Entin of Case Western Reserve says that Virginia's senators did object when President Reagan tried to give a Virginia seat to Kenneth W. Starr, who moved to the Virginia suburbs to work in Washington.

Reagan backed down and put Starr on the District of Columbia circuit.

Still, if there is a judicial population that can claim underrepresentation on the 4th Circuit, it is lawyers from Maryland's Washington suburbs -- whether they practice in this state or in the District.

In the 4th Circuit's 112-year history, there have been eight judges from Maryland. All have been from Baltimore."